Record and brief — Kahlon v. New Jersey
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Cee Court, U.S. |
FI I. „L U
81-234
; AUG 4 1981
No. ALEXAND | “FEVAS,
In the
Supreme Court of the United States
Ocroser Term, 1980
MAMOON RASHID KAHLON,
Petitioner,
us.
STATE OF NEW JERSEY,
Respondent.
———— eee
PETITION FOR WRIT OF CERTIORARI TO THE
SUPERIOR COURT OF NEW JERSEY,
APPELLATE DIVISION
Srrovup, Gotpstern, Jenkins & Pritzker
Micwaet L. Prirzker
R. Brent Dante.
134 North LaSalle Street
Suite 2100
Chicago, Illinois 60602
(312) 372-2225
Attorneys for Petitioner.
The Scheffer Press, Inc.—(312) 263-6850
i
Questions Presented For Review
I. Whether the judgment of the Appellate Division,
reversing the trial court’s suppression of evidence
obtained from a warrantless search of closed con-
tainers in the trunk of your Petitioner’s automo-
bile should be reversed in light of Robbins v.
Calij ornia, U.S. „ (No. 80-148, July 1,
1981) and Bible et al. v. Louisiana, ........ 2
(No. 80-1080, July 2, 1981)?
II. Whether the Appellate Division’s reliance upon
inde, endent fact-findings controverted by the ree-
ord, and its arbitrary refusal to allow your Pe-
titioner to supplement the record in order to dem-
onstrate the erroneous nature of said independent
fact-findings denied your Petitioner the fair ap-
pellate review to which he is entitled, in violation
of his Fourteenth Amendment right to due process
of law?
ii
List of Parties to the Proceeding
Mamoon Rashid Kahlon—Petitioner
State of New Jersey—Prosecuting Authority and Re-
spondent
Honorable James R. Zazzali—Attorney General of New
Jersey
David Linett—Somerset County Prosecutor
iii
TABLE OF CONTENTS
PAGE
Questions Presented i
List of Parties to the Proceeding ii
Official Report of the Case vi
Grounds upon which the Jurisdiction of the Supreme
Court of the United States is Invoked vi
Constitutional Provisions, and Rules Involved . vii
. ͤ[Af][fNk᷑t! 5
Statement of the Case . , 2
a) Procedural History 1
b) Statement of Facts 5
Reasons for Allowing the Writ : ws
1888 ñ—ñ— ͥ ——9.— 1a
TaBLe oF AUTHORITIES
Casxs: PAGE
Abell v. Commonwealth, 272 S.E.2d 204 (Va. 1980) 10
Arkansas v. Sanders, 442 U.S. 753 (1979) . 9
Bible, et al. v. Louisiana, 2 (No. 80-1980,
July 2, 1981) ‘ 8
Bradford v. State, 401 N. E. 2d 77 (Ind. App. 1980) . . 11
Buda) v. State, 150 Ga. App. 686, 258 S. E. 2d 318
(1979) 1
Carroll v. United States, 267 US. 182 (1925) 10
Chambers v. Maroney, 399 U.S. 42 (1970) 10
Commonwealth v. Benoit, 415 N.E.2d 818 —
8 —— 10
Commonwealth v. Timko, 417 A. 2d 620 (Pa. 1980) .... 10
Coolidge v. New Hampshire, 403 U.S. 443 (1971) .... 10
Mapp v. Ohio, 367 U.S. 643 (1961) 9
iv
People v. Boyles, 82 III 2d 128, 44 III. Dec. 880, 411
ex . 10
People v. Dalton, 24 Cal. ard 850, 157 Cal. Rptr. 497,
II „ö 10-11
People v. Plantefaber, 410 Mich. 594, 302 N.W.2d
1 ————————— 10
People v. Spencer, 74 A. D. 2d 77, 426 N. V. S. 2d 605
1114 —. ͤ-:8mů—64c·ĩũß 11
Pirner v. State, 45 Md. App. 50, 411 A. 2d 135 (1980) . 11
Robbins v. Californian, 2 (No. 80-148,
n 9
Rova Farms Resort, Inc. v. Investors Ins. Co. of
Amer., 65 N.J. 474, 323 A.2d 495 (1974) 13
State v. Cole, 265 S. E. 2d 507 (N.C. App. 1980) ........ 11
State v. Crutchfield, 123 Ariz. 570, 601 P.2d 333
1————————2ß&ꝗçç%Cé5p 11
State v. Dean, 574 P. 2d 572 (Kan. App. 1978) 11
State v. Delong, 123 Ariz. 570, 601 P. 2d 333 (1979) .... 11
State v. Dolce, 178 N. J. Super. 275 (App. Div. 1981) .. 11
State v. Filipi, 297 N.W.2d 275 (Minn. 1980) 10
State v. Hassapelis, 404 A.2d 232 (Me. 1979) ............ 11
State v. Jenkins, 619 P. 2d 108 (Haw. 1980) 10
State v. Johnson, 42 N. J. 146, 199 A. 2d 809 (1964) — 13
State v. Johnson, 87 N. J. Super. 195, (App. Div.)
E —kKKK—K T 14
State v. Kahlon, 172 N. J. Super 331. 411 A.2d 1178
„ 11, 15, 19
State v. Pace, 171 N. J. Super. 240 (App. Div. 1979) .... 11
State v. Patino, 83 N. J. 1, 414 (A.2d 1327 (1980) .... 11
State v. Prober, 297 N.W.2d 1 (Wis. 1980) 10
State v. Schrier, 283 N.W.2d 338 (Iowa 1979) 11
State v. Tome, 259 S. E. 2d 16 (W.Va. 1979) 10
State v. Wain and Wright, N. J. Super (No.
A- 4528-78, December 3, 1980) W
State v. White, 94 N. M. 687, 615 P. 2d 1004 (1980) . 11
United States v. Bella, 605 F. 2d 160 (5th Cir. 1979) . 10
United States v. Bulgier, 618 F.2d 472 (7th Cir.
1980) 10
United States v. Chadwick, 433 U.S. 1 (1977) 9
United States v. Dall, 608 F.2d 910 (Ist Cir. 1979) ... 10
United States v. Dien, 609 F.2d 1038 (2d Cir. 1979)
adhered to on rehearing 615 F.2d 10 (1980) 10
United States v. Hartman, 627 F.2d 7 (6th Cir.
1980) 10
United States v. Medina Verdugo, 637 F.2d 649 (9th
Cir. 1980) 10
United States v. Presler, 610 F.2d 1206 (4th Cir.
1979) — 10
United States v. Ross, — (D.C. Cir., No.
79-1624 en banc, March 31, 1981) ceveee 10
United States v. Scheis, 582 F.2d 1166 (8th Cir. en
banc 1978) ...... 10
ConsTITUTIONAL Provisions: PAGE
Fourth Amendment to the United States Constitu-
tion „ *
Fourteenth Amendment to the United States Con-
stitution vii
Article VI, Section II (3) of the Constitution of New
Jersey, 1947 . vin
Article VI, Section V(1) and (2) of the Constitution
of New Jersey, 1947 viii
vi
Official Report of the Case
The interlocutory opinion of the Superior Court of
New Jersey, Appellate Division is reported as State
v. Kahlon, 172 N.J. Super. 331 (App. Div. 1980). A copy
of this decision, as well as Orders denying your Petition-
er’s Motion for Leave to Appeal the interlocutory decision
to the Supreme Court of New Jersey, granting the State's
Motion for Summary Affirmance of the final judgment,
and denying your Petitioner’s Petition for Certification
are included in the Appendix of this Petition.
Grounds upon Which the Jurisdiction
of the Supreme Court is Invoked
The Superior Court of New Jersey, Appellate Division,
denied your Petitioner’s Petition for Rehearing on
February 17, 1981. The Supreme Court of New Jersey
declined discretionary review and denied your Petition-
er’s Petitien for Certification by an Order filed June 5,
1981. The jurisdiction of this Honorable Court is hereby
invoked pursuant to Title 28, United States Code 95
1257(3) and 2201 and Rule 20 of the Rules of the Supreme
Court of the United States.
vii
Constitutional Provisions and Rules Involved
The Fourth Amendment to the United States Constitu-
tion provides:
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.
The Fourteenth Amendment, Section 1, to the United
States Constitution provides:
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or im-
munities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or
property, without due process of law; nor deny to
any person within its jurisdiction the equal protection
of the laws.
Article VI, Section II (3) of the Constitution of New
Jersey, 1947, provides:
3. The Supreme Court shall make rules governing
the administration of all courts in the State and,
subject to the law, the practice and procedure in
all such courts. The Supreme Court shall have juris-
diction over the admission to the practice of law
and the discipline of persons admitted.
eee
Article VI, Section V (1) and (2) of the Constitution
of New Jersey, 1947, provides:
1. Appeals may be taken to the Supreme Court:
(a) In causes determined by the Appellate
Division of the Superior Court involving a ques-
tion arising under the Constitution of the United
States or this State;
(b) In causes where there is a dissent in the
Appellate Division of the Superior Court;
(e) In capital causes;
(d) On certification by the Supreme Court
to the Superior Court and, where provided by
rules of the Supreme Court, to the inferior
courts; and
(e) In such causes as may be provided by
law.
2. Appeals may be taken to the Appellate Division
of the Superior Court from the Law and Chancery
Divisions of the Superior Court, and in such other
causes as may be provided by law.
Ix Tue
SUPREME COURT OF THE UNITED STATES
Octosen Team, 1980
No.
MAMOON RASHID KAHLON,
Petitioner,
US.
STATE OF NEW JERSEY,
Respondent.
—
—
PETITION FOR WRIT OF CERTIORARI TO THE
SUPERIOR COURT OF NEW JERSEY,
APPELLATE DIVISION
Now Comes the Petitioner, Mamoon Rashid Kahlon,
by and through his counsel, and respectfully prays this
Honorable Court to issue a Writ of Certiorari, to the
Superior Court of New Jersey, Appellate Division, to
review the judgment entered therein.
Statement of the Case
Procedural History
The Petitioner, Mamoon Kahlon, was arrested by
Trooper Richard Toth on October 3, 1978, and, ax a
result, was charged in Complaint No. SD 96746 with
unlawful use of marijuana, contrary to N. J. S. 24:21-20(b),
and with entering the State for an unlawful purpose,
= =
contrary to N.J.S. 2A:170-1. In addition, the Petitioner
was charged with possession of marijuana in excess of
twenty-five grams and possession of same with intent
to distribute, contrary to N.J.S 24:20(a)(4) and 24:21-19
(a) (i).
On November 9, 1978, a probable cause hearing was
held before the Honorable George B. Esposito in the
Bridgewater Municipal Court, Somerset County, New
Jersey. The State prevailed and the matter was for-
warded to the County Prosecutor. Thereafter, the Peti-
tioner was indicted for the latter two charges by a
Somerset County Grand Jury in Indictment No. 168-78-J.
A Motion to Suppress Evidence was filed and heard
by the Honorable Arthur S. Meredith, J. S. C., on June
15, 1979 and June 18, 1979. Judge Meredith ordered
that all evidence seized from the warrantless searches
of the Petitioner’s person, vehicle trunk and the contain-
ers stored therein be suppressed as violative of the
Defendant’s Fourth Amendment rights. The State moved
for leave to appeal on July 23, 1979, and said motion
was granted on August 24, 1979. Oral argument was
heard by the Appellate Division on January 31, 1980,
and on February 13, 1980, the decision of the trial court
was reversed. A Motion for Leave to Appeal to the
Supreme Court of New Jersey was then filed by the
Petitioner and denied by Order filed April 30, 1980.
The Petitioner then entered a plea of guilty to the
second count of the indictment preserving the right to
appeal the constitutionality of the search of his vehicle
and the closed containers seized from said vehicle’s
locked trunk. Orders were entered dismissing Count One
of Indictment No. 168-78-J and Count One and Two of
Complaint No. SD 96746.
On June 20, 1980, the Petitioner, Mamoon Kahlon, was
sentenced to serve not less than one nor more than two
years incarceration in the State Prison, Trenton, New
Jersey and the Judgment of Conviction was entered by
the Court on that day. A timely Notice of Appeal was
filed on June 26, 1980.
On September 29, 1980, the Petitioner filed his Brief
on Appeal and a companion Motion to Supplement the
Record with the transcript of proceedings at the probable
cause hearing. On October 21, 1980, the State filed an
untimely Motion for Summary Affirmance. On November
13, 1980 the Petitioner responded to the merits of the
State’s motion and requested full briefing on the merits
of the contested searches. On October 23, 1980, two days
after the filing of the State’s Motion for Summary
Affirmance, the Appellate Division dismissed the Petition-
er’s Motion to Supplement the Record on the basis of a
technical failure to comply with R. 2:8-1(a). The State
had not objected to said noncompliance.
On November 17, 1980, The Appellate Division, sua
sponte, allowed the filing of the State’s untimely Motion
for Summary Affirmance nunc pro tunc, and proceeded
to grant said motion. In so doing, the Apnellate Division
reasoned that since it had dismissed the Petitioner’s
Motion to Supplement the Record, the disposition of the
appeal was governed by the “law of the case” doctrine.
The Petitioner’s New Jersey Counsel, Thomas E.
Lenahan, did not receive notice of either the Appellate
Division’s Order dismissing the Petitioner’s Motion to
Supplement the Record or its Order granting the State’s
Motion for Summary Affirmance until December 3, 1980.
Since by that time it was impossible to file a timely
Petition for Rehearing pursuant to R. 2:11-6, the Peti-
3
tioner was constrained to file a Notice of Petition for
Certification in the Supreme Court of New Jersey on or
about December 14, 1980. immediately thereafter the
Petitioner filed a Petition for Rehearing. an Amended
Motion to Supplement the Record, and a Motion for
Leave to File Petition for Rehearing Out of Time and
Nunc Pro Tung in the Appellate Division. It was ex-
pressly noted that the Attorney Generals office had no
objection to the latter two motions. On December 24,
1980, the Petitioner, Mamoon Kahlon, ed a Motion in
the Supreme Court of New Jersey requesting both that
the cause be temporarily remanded to the Appellate
Division for consideration ef the above thiee motions
and an extension of time for filing your Petitioner's
Petition for Certification until ten days after the Appel-
late Division’s disposition of said Motions. The Motion
for Leave to File Petition for Rehearing Out of Time
and Nune Pro Tune was granted by the Appellate Division.
On January 27, 1981, the Supreme Court of New Jersey
temporarily remanded the instant case to the Appellate
Division pursuant to the aforementioned motion of Decem-
her 24, 1980.
On February 17, i981, an order denying the Petitioner's
Amended Motion to Supplement the Record and his Pe-
tition for Rehearing was signed by the Honorable John
W. Fritz. No explanation or opinion accompanied these
Orders.
A timely Petition for Cortifieation was filed in the
Supreme Court of New Jersey which was denied by
an Order filed June 5, 1981. Your Petitioner is presently
free on $10,000 cash bond conditionally continued by the
Supreme Court of New Jersey and granted pending cer-
tiorari by Associate Justice William J. Brennan.
_
STATEMENT OF FACTS
New Jersey State Trooper Richard Toth testified at
the motion to suppress that on Cetober 3, 1978, at ap-
proximately 4:20 P. M., he was clocking eastbound traffic
on Route 78 from a stationary position at mile post 28.
The weather was clear and the flow of traffic was described
by Trooper Toth as ‘‘medium’’. Trooper Toth’s police
vehicle was ten yards off the highway hidden behind a
bush. Toth was equipped with a K-55 radar unit set to
operate at 1,600 yards. Trooper Toth testified that he
saw the radar device register a vehicle traveling at 30
miles per hour and looked up in time to note a 1972 tan
Buick pass him by. There were cars in front of the tan
Buick as well as cars coming up behind. Toth testified
that between 35 seconds and one minute elapsed before
he pulled out to pursue the Buick and that he ultimately
pulled the Buick over at mile post 20 where Route 78
branches into Route 287. Although the Buick was in the
center lane when it passed Toth’s stationary position, it
was in the right lane ‘‘when I finally put the dome lights
on.“ Trooper Toth testified that there was no problem
with the stop.
When the Buick stopped, Trooper Toth brought his
vehicle to a rest about two car lengths behind it. Although
Toth testified at the motion to suppress that the Peti-
tioner, Mr. Kahlon, remained in his vehicle while Toth
approached the driver’s window, he testified at the prob-
able cause hearing that Mr. Kahlon immediately exited
his vehicle and met him at the rear of the Buick. Either
way, when Toth asked for a driver’s license and regis-
tration, they were produced for the Trooper’s inspection.
Trooper Toth described Mr. Kahlon as cooperative. Troop-
er Toth could not see the Buick’s ashtray from his po-
—
sition. Toth testified that he had seen no one smoking
before pulling the vehicle over and that he could see no
smoke inside the car. Aside from the Petitioner, there
was a man in the front passenger seat and a woman in
the rear seat of the vehicle.
Trooper Toth then asked Mr. Kahlon to exit the Buick
and join him at the rear of the vehicle. Toth said ‘‘you
reek of marijuana.’’ According to Toth, Mr. Kahlon re-
plied that the occupants of his vehicle were hitchhikers
he had picked up in Harrisburg and it was they who had
been smoking marijuana. Toth then removed the two
people from the Buick and began questioning them, but
was only able to ascertain that they were French students
heading for New York who spoke very little English.
Contrary to his observation of Mr. Kahlon there was
no indication that Toth noticed any odor of marijuana
emanating from the passengers. According to Trooper
Toth, it was at this point that Mr. Kahlon admitted that
it was he and not the French students who had at some
point been smoking marijuana. Toth testified he then ad-
vised Mr. Kahlon of his constitutional rights.
Trooper Toth then patted down all three persons and
moved them to the side of the road by the guardrail. Toth
then proceeded to search the front seat of the Buick to
determine where the odor of burning marijuana’’ he had
noticed earlier was coming from. Trooper Toth testified
that he first looked in the ashtray and there he found a
half-burned marijuana cigarette. Toth then pulled down
the driver’s side visor and a clear plastic bag of mari-
juana fell down along with a pack of cigarette wrapping
papers.
=
Trooper Toth then advised Mr. Kahlon and his riders
that they were under arrest. Mr. Kahlon spoke up and
said ‘‘please, don’t arrest the French students because
they had no knowledge of the marijuana.’’ Mr. Kahlon
was then handcuffed at the rear of the Buick. At this
time, another New Jersey State Trooper arrived and took
the two French students to the police barracks. Trooper
Toth informed Mr. Kahlon that his vehicle was being
impounded and that they would wait at the scene until
the tow truck arrived, Trooper Toth then placed Mr.
Kahlon in his police vehicle.
Although the record is silent, it is safe to assume that
Trooper Toth followed the customary police practice of
securing an arrestee with the seat belt and shoulder har-
ness of the police vehicle as well as the handeuffs. Troop-
er Toth testified that at the time of the arrests of the
French students, they had previously been patted down,
that they wore only T-shirts and jeans that were inca-
pable of concealing anything, and that he ‘‘felt comfort-
able. Mr. Kahlon’s attitude was cooperative.
Although there was nothing in the back seat of the
Buick except a portable T.V. set on the floor, Trooper
Toth entered the back seat. Toth only then ‘‘«detected
what he believed to be a rather heavy odor of unburned
marijuana.’’ Toth lifted out the back seat of the Buick
but found nothing. Trooper Toth took the keys from the
ignition and opened the trunk. Inside the trunk, Trooper
Toth observed one or two suitcases, a plastic clothing
bag, and a cardboard box that appeared to be a thirty
dozen egg crate.’’ Toth testified that the ‘‘flaps were such
that the box was closed.’’ The cardboard flaps did not
cover the top of the box completely but left a six by six
square on the top covered by green plastic. In the square,
Trooper Toth could see only green plastic. Toth smelled
the box and decided that it was the source of the odor.
He then seized the box, opened the flaps, tore open a hole
in the green plastic, and observed what he believed to
be marijuana. Toth then placed the box in the back seat
of his police vehicle.
=
Reasons For Allowing the Writ
I. The Judgment of the Appellate Division, reversing
the trial court’s suppression of evidence obtained
from a warrantless search of closed containers in the
trunk of your Petitioner’s automobile, should be
summarily reversed in light of Robbins v. California,
8 U.S. (No. 80-148, July 1, 1981) and Bible
et al. v. Louisiana, ........ a (No. 80-1080, July
Your Petitioner, Mamoon Rashid Kahlon, respectfully
submits that under the circumstances exhibited by the
record in the case at bar, the Appellate Division’s re-
fusal to apply the principles enunciated in the cases of
United States v. Chadwick, 433 U.S. 1 (1977) and Arkan-
sas v. Sanders, 442 U.S. 753 (1979) resulted in a denial
of rights guaranteed to him under the warrant clause of
the Fourth Amendment, made binding upon the states in
Mapp vy. Ohio, 367 U.S. 643 (1961). The Petitioner con-
tends that this Court’s recent decisions in Robbins v. Ca-
lifornia, ........ —— (No. 80-148, July 1, 1981), where
this Court applied the Sanders holding to a search occur-
ring on January 5, 1975; and in Bible et al. v. Louisiana,
— U. S. , (No. 80-1080, July 2, 1981) where this
Court vacated by per curiam Order a judgment of the
Supreme Court of Louisiana refusing to apply Sanders
retroactively, are dispositive of the case at bar. The ar-
rest of your Petitioner occurred on October 3, 1978. The
date of the decision in Sanders was June 20, 1979, at
which time the state was in the process of prosecuting
an interlocutory appeal of the trial court’s granting of
your Petitioner’s Motion to Suppress. The issue then
—10—
becomes whether Sanders exhibited such a marked depar-
ture from the principles recognized in Coolidge v. New
Hampshire, 403 U.S. 443 (1971) and United States v.
Chadwick, supra, that situations similar to that in San-
ders, but occurring in the interim between the Chadwick
and the Sanders decisions, should be governed by cases
that have been substantially limited, in pertinent part, by
Coolidge and Chadwick. Chambers v. Maroney, 399 U.S.
42 (1970) (per se automobile search at station); Carroll
v. United States, 267 U.S. 132 (1925) (per se automobile
search on highway). With only two exceptions that your
Petitioner’s research has been able to reveal, one of which
this Court has recently corrected in Bible et al. v. Loui-
siama, supra, the states and circuit courts of ap-
peal have answered in the negative and afforded retro-
active application of the Sanders decision. United States
FF yy (D.C. Cir., No. 79-1624, en bane,
March 31, 1981); United States v. Medina-Verdugo, 637
F.2d 649 (9th Cir. 1980); United States v. Hartman, 627
F.2d 7 (6th Cir. 1980); United States v. Bulgier, 618 F.2d
472, 475 n. 8 (7th Cir. 1980); United States v. Dien, 609
F. 2d 1038 (2d Cir. 1979) adhered to on rehearing 615 F. 2d
10 (1980); United States v. Presler, 610 F.2d 1206 (4th
Cir. 1979); United States v. Dall, 608 F.2d 910 (Ist Cir.
1979); United States v. Bella, 605 F.2d 160 (5th Cir. 1979);
United States v. Scheis, 582 F.2d 1166 (8th Cir. en bane
1978); People v. Plantefaber, 410 Mich. 594, 302 N.W.2d
557 (1981); Commonwealth v. Benoit, 415 N.E.2d 818
(Mass. 1981); Abell v. Commonwealth, 272 S. E.2d 204
(Va. 1980); State v. Jenkins, 619 P.2d 108 (Haw. 1980);
People v. Boyles, 82 III. 2d 128, 44 III. Dec. 880, 411 N. E.
2d 1346 (1980); State v. Prober, 297 N. W. 2d 1 (Wis.
1980); State v. Filipi, 297 N. W. 2d 275 (Minn. 1980); Com-
monwealth v. Timbo, 417 A. 2d 620 (Pa. 1980); State v.
Tomey, 259 S. E. 2d 16 (W. Va. 1979); People v. Dalton,
*
24 Cal.3d 850, 157 Cal. Rptr. 497, 598 P. 2d 467 (Calif.
1979); State v. Schrier, 283 N. W. 2d 338 (Iowa 1979);
State v. Hassapelis, 404 A. 2d 232 (Me. 1979); State v.
White, 94 N. M. 687, 615 P. 2d 1004 (1980); State v. Cole,
265 S. E. 2d 507 (N.C. App. 1980); People v. Spencer, 74
A.D.2d 77, 426 N.Y.S.2d 605 (1980); Bradford v. State,
401 N.E.2d 77 (Ind. App. 1980); Pirner v. State, 45 Md.
App. 50, 411 A.2d 135 (1980); State v. Delong, 602 P.2d
665 (Or. App. 1979); State v. Crutchfield, 123 Ariz. 570,
601 P.2d 333 (1979); Buday v. State, 150 Ga.App. 686,
258 S.E.2d 318 (1979); See, State v. Dean, 574, P.2d
572 (Kan. App. 1978), applying Chadwick retroactively.
The remaining exception is the State of New Jersey.
Thus it seems to your Petitioner that only in the State
of New Jersey is it still sometimes held that searches con-
ducted after Chadwick but before Sanders are not gov-
erned by the explication of Chadwick set forth in Sanders.
State v. Dolce, 178 N.J.Super. 275 (App. Div. 1981);
State v. Kahlon, 172 N.J.Super. 331 (App. Div. 1980).
It should be noted that this federal constitutional ques-
tion is by no means settled in New Jersey. The precise
issue has never been addressed by the Supreme Court
of New Jersey, however, a number of panels of the
Appellate Division have afforded New Jersey defen-
dants relief by explicitly applying the Chadwick-San-
ders doctrine retroactively.’ State v. Wain and Wright,
— N.J Super. ........ (No. A- 4528-78, December 3, 1980);
State v. Pace, 171 N.J.Super. 240 (App. Div. 1979).
As will become evident in the next question presented
for review, this issue cannot be avoided with any rectitude
*In his a in State v. Patino, 83 N.J.
1, 414 A.2d 1327 ( ), Justice Pashman unequivocally
asserts in a footnote his view that neither Sanders nor
Chadwick announced a new rule of law. State v. Patino,
83 N. J. at 16 n.1.
=
on the basis of exigency. At the time of the subject
intrusions, Mr. Kahlon was physically restrained in the
patrol car and had no access to the contents of the con-
tainers in the trunk. The various containers were ex-
elusively within the control of Trooper Toth. The
vehicle was immobile awaiting the arrival of the tow
truck. Trooper Toth had the keys.
Your Petitioner respectfully suggests that the guidance
of this Honorable Court is necessarily to prevent dis-
parate treatment of similarly situated defendants in New
Jersey. Moreover, your Petitioner respectfully suggests
that the summary relief granted the petitioners in Bible
et al. v. Louisiana. | eee „(No. 80-1080, July 2,
1981) would be an appropriate and just disposition of the
instant Petition.
II. The Appellate Division’s reliance upon independent
Your Petitioner, Mamoon Rashid Kahlon, contends that
when an appellate court sua sponte makes independent
findings of fact crucial to its decision, and when said
facts are controverted by the record on appeal and by
the fair implications of the holding of the trial court,
and when there is no appeal as of right from the subject
appellate decision, a litigant has been denied his state-
granted right to appeal, and, consequently, his right to
due process of law as guaranteed by the Fourteenth
Amendment to the United States Constitution. There
is no question that the State of New Jersey provides a
right to appeal to its criminal defendants. See New
*
Jersey Constitutional provisions, supra; Rova Farms
Resort, Inc. v. Investors Ins. Co. of Amer. 65 N.J. 474,
323 A.2d 495 (1974); State v. Johnson, 42 N.J. 146, 199
A.2d 809 (1964).
The issue then becomes whether your Petitioner has
been denied the rights granted to other persons subject
to the application of New Jersey law.
As will be noted, the very foundation for the inter-
locutory appellate decision, summarily affirmed by the
Appellate Division, was certain independent appellate
findings of fact that are inconsistent with both the find-
ing of the trial court and the record on appeal at the
interlocutory stage. On direct appeal from the final judg-
ment, the Petitioner brought these errors to the atten-
tion of the Appellate Division and sought to confirm and
substantiate them by moving to supplement the record
with the transcript of proceedings at the probable cause
hearing. This transcript proved beyond peradventure
that the factual setting established by the Appellate
Division in its disposition of the state’s interlocutory
appeal was manifestly incorrect, resulting in an im-
proper application of the law of the State of New Jersey
and an erroneous resolution of the interlocutory appeal.
The Petitioner’s first Motion to Supplement the Record,
filed concurrently with the Petitioner’s Brief on Appeal,
was denied for a technical failure to comply with R. 2:8-1
(a); and the Petitioner’s Amended Motion to Supplement
the Record was denied without any explanation whatso-
ever. Having denied these crucial motions, without due
consideration of their importance, the Appellate Division
summarily disposed of the Petitioner’s first direct appeal
from a final judgment against him on the basis of the
“law of the case” doctrine, because, “the record facts
—14—
remain unchanged and are identical here with those of
record in the first appeal at least for purposes of this
motion.“ The Petitioner notes that the record facts“
remained unchanged only because the Appellate Division
so dictated. Notwithstanding that the original record
on appeal conflicts with the interlocutory appellate fact
finding, the Petitioner contends that in ignoring the
record and denying his requested supplementation as
Appellant, the Appellate Division denied him an oppor-
tunity to have his case fairly adjudicated on the basis
of a complete record. Since the record, especially when
read with the requested supplementation, unequivocally
belies the factual underpinnings of the interlocutory deci-
sion, the denial of the motions to supplement the record
denied the Petitioner due process of law by preventing
him from presenting his case. The Appellate Division
itself has stated:
The aim of due process is to prevent fundamental
unfairness. It includes as one of its essential ingredi-
ents the opportunity to defend. If established, the
deprivation of a reasonable opportunity to prepare
a defense may be regarded as a denial of due process.
(Citations omitted).
State v. Johnson, 87 N.J.Super. 195, 197, 198 (App. Div.
1965).
In its interlocutory opinion, the Appellate Division
candidly admitted engaging in appellate fact finding
determinative of their decision. The Court wrote:
We agree generally with the factual findings made
by the judge. They are sustained by sufficient credible
evidence. However, we are compelled to make
independent supplemental findings based on the rec-
ord in order to give a more complete background of
the facts upon which we predicate our determination.
(emphasis added).
= =
State v. Kahlon, 172 N.J.Super. 331, 335 (1980). The
Petitioner submits that the said “independent supple-
mental findings’’ are not in fact based on the record
even then before the Court, and further, that the materials
that your Petitioner persistently and fruitlessly sought
to present to the Appellate Division upon Ais appeal
from the final judgment conclusively establish the errone-
ous nature of said “supplemental findings.” It was this
arbitrary fact-finding and subsequent denial of the Peti-
tioner’s attempts to present a complete record to the
Appellate Division that violated the Petitioner’s due
process rights.
The significance of this arbitrary exclusion becomes
apparent from a brief comparison of the “supplemental
findings” of the Appellate Division with the record on
appeal and the transcript of proceedings at the probable
cause hearing. It will become clear that the basis for
the interlocutory decision is unfounded in the record.
The Appellate Division narrated its “independent” ver-
sion of the relevant facts in the following manner:
Toth ordered defendant out of the car and in-
formed him that somebody was smoking marijuana
in the car. Defendant first stated that his two passen-
gers, hitchhiking students from France picked up by
him near Harrisburg, were smoking it. After Toth
directed the students out of the vehicle and began
to question them, defendant interrupted Toth’s inter-
rogation and stated that defendant alone was smoking
marijuana.
Following this admission Toth gave defendant
Miranda warnings and subjected the occupants of
the car to a protective “pat down.” He then returned
to defendant’s vehicle to determine the area from
which the odor of marijuana had emanated. He
checked the vehicle’s ashtray and found a half-
burned marijuana cigarette (roach) approximately
—=— =
one inch long. From his training Toth thought the
roach to be unusually large. It was neither burning
nor hot when discovered.
In checking the interior further, Toth found a
clear plastic bag filled with what was later determined
to be approximately ½ ounce of marijuana and a
package of cigarette wrapping papers. The bag and
papers were hidden behind the sun visor on the
passenger's side. Toth returned to the three people
and advised them that they were under arrest. De-
fendant asked Toth not to arrest the French students
as they had no knowledge that there was any mari-
juana in the vehicle.
Toth handcuffed only defendant and returned to
the back seat of the car, reasonably believing, since
the female occupied the back seat, that more mari-
juana might be found there. Although he noticed
the very heavy odor of unburned marijuana, Toth
found only a portable television set on the floor and
no potential marijuana containers. He lifted the rear
seat but found nothing.
Toth took the keys from the ignition and opened
the trunk. Again he smelled a very heavy odor of
unburned marijuana. Inside the trunk were several
suitcases and a cardboard box labeled “Cooler Keg.”
The box appeared to be a 30-dozen capacity egg
crate. Although the box flaps were closed, there was
a six-inch square opening on top. The flaps did not
cover the box top completely.
Green plastic, similar to the type used in garbage
bags, was visible from the box opening. Toth lowered
his nose to the opening. He was positive that the
odor of unburned marijuana emanated from the
plastic bag in the box. Upon opening the box flaps
Toth discovered that the bag, although tied shut,
had two or three tears in it. He enlarged one of the
tears and observed what was determined to be mari-
juana. He also found the scale underneath a clothing
bag in the trunk of the car.
~—
At about this time a backup unit arrived at the
scene. It transported the French students to the
Somerville State Police station. Defendant and Toth
awaited a tow truck at the scene. (Emphasis added).
Id. at 336, 337. In this inaccurate scenario Trooper Toth
is on his own, alone, searching the rear seat and the
trunk of the vehicle while in the presence of three persons,
only one of whom is handeuffed. As noted above, this
interpretation is in obvious conflict with the actual testi-
mony. At the hearing on the motion to suppress Trooper
Toth specifically testified that after he had handcuffed
the Petitioner, ‘‘[p]rior to entering the rear of the
vehicle, he] told [the French students] to sit on the
guardrail and almos! simultaneously a backup unit arrived,
another trooper.” (emphasis added) (Motion to Suppress
— p.36). This testimony, contradicting the fact-finding
of the Appellate Division, is consistent with and cor-
roborates Toth’s testimony at the probable cause hear-
ing on November 9, 1978 before the Honorable George
B. Esposito, Magistrate, which the Appellate Division on
two occasions arbitrarily declined to consider. At the
probable cause hearing, Trooper Toth testifed as fol-
lows :
Q. And deseribe the marijuana [sic] or what ever
you found above the sun-visor.
A. It was a small plastic bag, I would say maybe
a quarter of an ounce.
Q. Green vegetable substance inside?
A. Brown.
Q. At that point did you put Mr. Kahlon under
arrest?
A. Yes. And the other two subjects.
Q. This is before you searched the rear of the car?
A. Yes.
Q. Did you call for a back-up unit at that time?
A. No I didn’t, but another trooper was driving
by at the time and he stopped.
2 =
Q. Did you tell Mr. Kahlon at the time you
arrested him, or at the time of the arrest that you
were impounding his vehicle?
A. i told him we were impounding it and me and
Mr. Kahlon would wait at the scene until the tow
truck came. The other two subjects were taken to the
barracks by the other trooper. (emphasis added).
(Probable Cause Hearing — p. 12, 13). It is thus
clear that the supplemental findings” conflict with
the evidence presented at both the motion to suppress
and the probable cause hearing. In actuality, the evidence
indicates that at the time Trooper Toth entered the rear
of the passenger compartment and thereafter searched
the trunk and containers, the French students had already
been removed from the scene and the Petitioner was
handeuffed within the police vehicle. Trooper Toth was,
for all practical purposes, unconcerned and secure when
he searched the trunk of the vehicle and the personal
effects of Mr. Kahlon contained therein. The car was
immobile and everything in it was safely in Toth’s custody
awaiting arrival of the tow truck. No inventory search
was conducted until later, after the vehicle had been
removed to the station.
The situation shown by the evidence stands in stark
contrast to the misconstrued facts underlying the Appel-
late Division’s interlocutory determination. The Court
reasoned :
Unlike State v. Slockbower, 79 N.J.1 (1979), and
State v. Ercolano, supra, the vehicle in the present
case was not impounded. The time here was late
afternoon — 4:20 p.m. Defendant’s vehicle was mov-
able on an open highway and was being used for
an illicit activity. The intent and purpose of the
police, predicated on probable cause, were to search
the trunk of the vehicle for contraband — marijuana
— while it was on the highway. Although all three
—_— =
occupants of the car were arrested and out of the
vehicle, only defendant's freedom of movement was
physically restricted. Toth had moved the others away
from the car and taken the keys. However, Toth’s
testimony supports the view—and even if it did not,
it is not reasonably inconceivable — that, Toth’s
weapons and physical prowess notwithstanding, the
others could have overpowered him, grabbed the keys
and escaped. Under these circumstances a plain ex-
igency existed justifying a warrantless search of the
car trunk at the scene. (emphasis added).
State v. Kahlon, supra at 340. The Petitioner submits
that it is manifestly clear that the “supplemental findings”
of the Appellate division are palpably erroneous. There
was no exigency at the time Toth searched the contents of
the trunk. The vehicle was immobile, the students had been
removed, and Mr. Kahlon was restrained in Toth’s patrol
car. This fact has been brought to the attention of the
Appellate Division in your Petitioner’s Brief on Appeal
from the final judgment, in his Motion to Supplement
the Record, in his Response to the State’s Motion for
Summary Affirmance, in his Amended Motion to Supple-
ment the Record, and in his Petition for Rehearing. The
Petitioner submits that the Appellate Division’s inter-
locutory misapprehensions of fact are undeniable. The
arbitrary, capricious and persistant denial of the Appel-
late Division to responsibly address the actual evidence
is a denial of your Petitioner’s constitutional rights io
due process of law.
The Petitioner, Mamoon Kahlon, faces a sentence of
one to two years incarceration. Mr. Kahlon was a citizen
and resident of East Pakistan until he and most of his
family were forced to flee to the United States during
the Bangladesh Revolution in 1970. He is presently
married to an American citizen and resides in Blooming-
ton, Indiana, where he operates his own business creating
— 20) —
stained glass. Mr. Kahlon is a life long member of the
Ahmadiya sect of Islam, a minority religious group which
has been declared non-muslim and stripped of all civil
rights by government fiat in West Pakistan: the Peti-
tioner’s only destination in the event of deportation as a
result of this case. The serious ramifications of the ar-
bitrary actions of the Appellate Division bear far more
strongly on your Petitioner than the ordinary defendant
because the ultimate penalty is extremely more severe.
The interests of justice militate in favor of this Honor-
able Court’s reviewing the actions of the Appellate Di-
vision in response to their denial of your Petitioner’s
right to due process and fundamental fairness herein
displayed.
Conclusion
Wherefore, your Petitioner, Mamoon Rashid Kahlon,
prays this Honorable Court to grant the instant Petition
for Certiorari and to provide such relief as this Honor-
able Court deems fit and proper.
Respectfully submitted,
Stroup, Go.pstein, Jenkins & Pritzker
Micnakl. L. Pritzker
R. Brent DaxIEI.
134 North LaSalle Street
Suite 2100
Chicago, Illinois 60602
(312) 372-2225
Attorneys for Petitioner.
— 12
APPENDIX
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4707-78
STATE OF NEW JERSEY,
Plaintiff-Appellant,
vs.
MAMOON RASHID KAHLON,
Defendant-Respondent.
Argued: January 31, 1980- Decided: Feb. 13, 1980
Before Judges Fritz, Kole and Lane.
On appeal from Superior Court, Law Division, Somer-
set County.
L. Gilbert Farr, Assistant Prosecutor, argued the
cause for appellant (David Linett, Somerset County
Prosecutor, attorney).
Thomas E. Lenahan, Jr. argued the cause for respon-
dent (Franchino & Lenahan, attorneys).
The opinion of the court was delivered by
KOLE, J.A.D.
Defendant was indicted for possession of over 25
grams of marijuana and possession thereof with intent
to distribute. He moved for suppression of all evidence
obtained from the search of his motor vehicle. After
a hearing, the judge sustained the seizure of marijuana
found in the interior of the vehicle but suppressed the
evidence found [sic.) the trunk thereof, including 30
pounds of marijuana, a balance scale and cash in the
=
amount of $3,731, as well as statements made by defen-
dant after the search of the trunk.*
We granted the State leave to appeal from the en-
suing order. We reverse the order to the extent that
it suppresses the evidence seized from the trunk of the
car and the statements made by defendant after such
search. We hold that such evidence was legally seized
and, of course, the later statements were not tainted
thereby.
We agree generally with the factual findings made by
the judge. They are sustained by sufficient credible
evidence. However, we are compelled to make indepen-
dent supplemental findings based on the record in order
to give a more complete background of the facts upon
which we predicate our determination.
On October 3, 1978 at approximately 4:20 p.m., State
Trooper Toth stopped defendant’s vehicle as it was
traveling south on Interstate Highway 287 in Bridge-
water Township, since Toth’s radar device showed that
it was proceeding at 30 miles per hour, considerably less
than the normal speed for that highway. The vehicle
was traveling in the center lane and, at that rate of
speed, was causing other motorists to pass it on the
right.
After stopping the vehicle, Toth requested that de-
fendant exhibit his driver’s license and motor vehicle
*The judge properly held that the stop of defendant’s
vehicle was not an illegal random stop; that Officer Toth
had a right to enter the passenger area of the vehicle
to search it for marijuana since he not only smelled
burned marijuana but defendant had admitted smoking
it; that defendant was not entitled to have Miranda
warnings given by the officer since he voluntarily had
stated that it was he who had smoked the marijuana
rather than his French-speaking passengers, and that
probable cause justified the search of the interior of
the car and the seizure therefrom of the ‘‘roach’’ and
the small quantity of marijuana found in the vehicle.
=
registration. Defendant complied with the request. Toth
noticed that another male was seated on the passenger’s
side next to defendant and a female was seated in the
back. When defendant opened his window to exhibit his
credentials, Toth smelled an odor he believed to be burn-
ing marijuana. Toth was familiar with the scent of
marijuana, both burned and unburned, from attendance at
several drug training seminars and courses.
Toth ordered defendant out of the car and informed
him that he knew that somebody was smoking marijuana
in the car. Defendant first stated that his two passengers,
hitchhiking students from France picked up by him near
Harrisburg, were smoking it. After Toth directed the
students out of the vehicle and began to question them,
defendant interrupted Toth’s interrogation and stated
that defendant alone was smoking marijuana.
Following this admission, Toth gave defendant Miranda
warnings and subjected the occupants of the car to a
protective ‘‘pat down.’’ He then returned to defendant’s
vehicle to determine the area from which the odor of
marijuana had emanated. He checked the vehicle’s ash-
tray and found a half burned marijuana cigarette (roach)
approximately one inch long. From his training Toth
thought the roach to be unusually large. It was neither
burning nor hot when discovered.
In checking the interior further, Toth found a clear
plastic bag filled with what was later determined to be
approximately ½ ounce of marijuana and a package of
cigarette wrapping papers. The bag and papers were
hidden behind the sun visor on the passenger’s side.
Toth returned to the three people and advised them they
were under arrest. Defendant asked Toth not to arrest
the French students as they had no knowledge that there
was any marijuana in the vehicle.
Toth handcuffed only defendant and returned to the
back seat of the car, reasonably believing, since the
female occupied the back seat, that more marijuana
might be found there. Although he noticed the very
wile
heavy odor of unburned marijuana, Toth found only a
portable television set on the floor and no potential
marijuana containers. He lifted the rear seat but found
nothing.
Toth took the keys from the ignition and opened the
trunk. Again he smelled a very heavy odor of unburned
marijuana. Inside the trunk were several suitcases and
a cardboard box labeled ‘‘Cooler Keg.’’ The box ap-
peared to be a 30 dozen capacity egg crate. Although
the box flaps were closed, there was a six inch square
opening on top. The flaps did not cover the box top
completely.
Green plastic, similar to the type used in garbage bags,
was visible from the box opening. Toth lowered his nose
to the opening. He was positive that the odor of un-
burned marijuana emanated from the piastic bag in the
box. Upon opening the box flaps, Toth discovered that
the bag, although tied shut, had two or three tears in
it. He enlarged one of the tears and observed what was
determined to be marijuana. He also found the scale
underneath a clothing bag in the trunk of the car.
At about this time, a backup unit arrived at the
scene. It transported the French students to the Somer-
ville State police station. Defendant and Toth awaited
a tow truck at the scene. While defendant’s vehicle was
being towed to the station, Toth questioned defendant
about the quantity of marijuana in the the bag and
learned that it was about 30 pounds. Toth had already
warned defendant of his Miranda rights after he had
volunteered that he was smoking the marijuana. Defen-
dant also told Toth that he had over $3,000 in the bottom
of a plastic clothing bag in the car trunk.
When the police were satisfied that the French students
were innocent of any illegal activities, they were re-
leased.
We agree with what appears to be the judge’s deter-
mination that Toth was rightfully in the rear interior of
=
the car to conduct a further search for marijuana. We
find further that Toth was a trained police officer who,
as found by the judge, smelled and was able to smell un-
burned marijuana while thus lawfully in that part of the
car’s interior. His inability to pin-point the source of
the smell of unburned marijuana while in that area of
the automobile although it appeared to emanate from
the rear of the vehicle, together with the marijuana
already found in the car, reasonably could leave him to
conclude, as he did, that the odor came from the car’s
trunk and accordingly established probable cause to
search the trunk for such marijuana. See, State v. Har-
rison, 111 Ariz. 508, 533 P. 2d 1143 (Sup. Ct. 1975);
People v. Cook, 13 Cal. 3d 663, 119 Cal. Rptr. 500, 532
P. 2d 148 (Sup. Ct. 1975), cert. den. 423 U.S. 870, 96
S.Ct. 135, 46 L.Ed. 2d 100 (1975); Ford v. State, 37 Md.
App. 373, 377 A. 2d 577 (Ct. Spee. App. 1977). See also,
United States v. Hosch, 577 F. 2d 963 (5 Cir. 1978);
United States v. Thompson, 558 F. 2d 522, 524 (9 Cir.
1977), cert. den. sub. nom. Reeve v. United States, 435
U.S. 914, 55 L. Ed. 2d 504 (1978); United States v. Bar-
nard, 553 F. 2d 389 (5 Cir. 1977); Sanchez v. State, 582
S. W. 2d 813 (Tex. Crim. App. 1979), cert. den US.
— (January 21, 1980). (f. Johnson v. United States,
333 U.S. 10, 13, 92 L.Ed. 436, 440 (1948) in which the
court indicated that detection of opium odors by trained
individuals could constitute probable cause. Contrast the
fact situation in State v. Patino, 163 N./. Super. 116,
122-123 (App. Div. 1978), certif. granted 79 N.J. 477
(1979).
There were also sufficient exigent circumstances here
justifying the warrantless search of the trunk and the
search and seizure of the box contained therein and its
contents, as well as the scale and the money. Under the
circumstances of this case, that warrantless search and
seizure were entirely reasonable and legally unassailable.
We disagree with the judge's determination that since
defendant and his passengers had been arrested prior to
the time the trunk was actually opened, the trunk and
—
its contents were under the exclusive dominion and con-
trol of the arresting officer before the search thereof,
and thus there was no exigency to justify the subsequent
warrantless search and seizure. That this car on the
side of a highway could have been towed to the police
barracks while its occupants were under arrest and in
custody and a search warrant for the trunk could have
been obtained does not negative the existence of exigent
circumstances
Ever since Carroll v. United States, 267 U.S. 132, 69
L.Ed. 543 (1925), courts have recognized what has come
to be known as the automobile exception’’ to the war-
rant requirement. The validity of this exception was
reaffirmed and its underlying rationale was restated by
the Supreme Court in Arkansas v. Sanders, U.S.
— , 61 L.Ed. 2d 235 (1975). The court there addressed
the question whether, in the absence of exigent circum-
stances, police are required to obtain a warrant before
searching luggage taken from an automobile stopped
and searched for contraband. However, Sanders further
held that given probable cause to search and the mobility
of the vehicle when it is stopped, the stop and search of
the automobile itself is legally permissible.
The inquiry to be made as to the validity of the war-
rantless search in the present case is twofold: (1) at
the s one did the police have probable cause to search
the .. unk of the automobile? and (2) were the exigencies
then arising from the movable nature of the vehicle such
that a warrantless search was justified? If the answer
to both questions is in the affirmative, the search was
constitutionally valid. See, Sanders, supra, 69 L.Ed. 2d
at 246, n. 14; Teras v. White, 423 U.S. 67, 46 L.Ed. 2d
209 (1975), cited in State v. Ercolano, 79 N.J. 25, 46
(1979). We answer both inquiries in the affirmative.
Unlike State v. Slockbower, 78 N.J. 1 (1979) and State
v. Ercolano, supra, the vehicle in the present case was
not impounded. The time here was late afternoon—4:20
p.m. Defendant’s vehicle was movable on an open high-
way and was being used for an illicit activity. The in-
— 7a—
tent and purpose of the police, predicated on probable
cause, were to search the trunk of the vehicle for con-
traband—marijuana—while it was on the highway. Al-
though all three occupants of the car were arrested and
out of the vehicle, only defendant’s freedom of movement
was physically restricted. Toth had moved the others
away from the car and taken the keys. However, Toth’s
testimony supports the view—and even if it did not, it
is not reasonably inconceivable—that, Toth’s weapons
and physical prowess notwithstanding, the others could
have overpowered him, grabbed the keys and escaped.
Under these circumstances a plain exigency existed justi-
fying a warrantless search of the car trunk at the scene.
It would not have been readily practicable for the police
to have obtained a warrant for this purpose prior to
the search. See, Chambers v. Maroney, 399 U.S. 42, 26
L.Ed. 2d 419 (1970); State v. Ercolano, supra, at 38,
43-46; State v. Waltz, 61 NJ. 83, 88 (1972); State v. Mur-
ray, 151 N.J.Super. 300 (App. Div. 1977), certif. den. 75
N.Y. 541 (1977); State v. Gaines, 147 N.J.Super. 84,
96-97 (App. Div. 1975), aff'd o.b. 72 N.J. 346 (1977);
State v. Kennedy, 134 N.J.Super. 454 (App. Div. 1975);
State v. McCarthy, 130 N.J.Super. 540, 543-545 (App.
Div. 1974); State v. Boone, 114 N.J.Super. 521 (App.
Div. 1971); State v. Brown, 160 N.J.Super. 227 (Law
Div. 1978). See also, State in the Interest of H.B., 75
N.J. 243, 251-252 (1977); Sanchez v. State, supra.
The search of the box found in the trunk was lawful.
It was from this box that the odor of marijuana emanated
and in which the marijuana was found. Unlike the lug-
gage in Arkansas v. Sanders, supra, the flaps of the box
did not completely cover it, the opening at the top of the
box plainly showed a green plastic bag from which the
odor could be detected and there were tear holes in the
plastic bag which, when opened further, made the
marijuana visible to the trained eye of the officer. In
these circumstances, it cannot be said that defendant had
any reasonable expectation of privacy in the contents of
the box or that the exigency that permitted the open-
ing of the car trunk at the scene did not apply as well
*
to the then search of the box. The facts here did not
require, as in Arkansas v. Sanders, supra, that the police
remove the box, reduce it to his exclusive possession and
obtain a warrant to search it.
In any event, even if a warrant for the search of the
box were required by reason of Arkansas v. Sanders,
supra, we have concluded that, essentially for the rea-
sons expressed in State v. Howery, 80 N.J. 563 (1979),
Sanders is not retroactive to a search and seizure, as
here, that occurred prior to the date of its determination.
Compare, State v. Pace, 171 N.J.Super. 240 (App. Div.
1979), where the matter of the retroactivity of Sanders
was not discussed and apparently not raied. But see,
State v. Carpentieri, 168 N.J.Super. 589 (App.Div. 1979),
certif. granted, 81 V/. 406 (1979), with which we do
not agree.
We note that the police officer here was alone and
could reasonably believe that under the then existing
law, given probable cause to search an automobile on
the highway even though defendant and the two passen-
gers were under arrest, exigent circumstances justified
the warrantless search of the box. See, State v. Gray,
59 N.J. 563 (1971); State v. McCarthy, supra. See also,
State v. Parker, 153 V.. Super, 481, 487 (App. Div. 1977).
We find no indication that our courts anticipated the
holding in Sanders. Thus, for example, State v. De-
Lorenzo, 166 N.J.Super. 483 (App. Div. 1979) and State
v. Parker, swpra, deal with the search of bags or lug-
gage already secured in police facilities, rather than the
search of luggage stored in a car stopped on the high-
way. They are thus distinguishable from Sanders.
The scale was found as part of the legally proper car
trunk search at the scene. The $3,731 in cash was found
by Toth while the automobile was at headquarters in the
ear trunk but in a clothing bag pursuant to information
volunteered to him by defendant after the valid car trunk
search. Hence, the seizure both of the items was valid.
The provisions of the order which suppressed evidence
and defendant’s statements are reversed.
— 9a —
SUPREME COURT OF NEW JERSEY
M-700
September Term 1979
STATE OF NEW JERSEY,
Plaintiff-Respondent,
vs.
MAMOON: RASHID KAHLON,
Defendant-Movant.
ORDER
(Filed April 30, 1980)
This matter having been duly presented to the Court,
it is ORDERED that the motion for leave to appeal is
denied.
WITNESS, the Honorable Robert N. Wilentz, Chief
Justice, at Trenton, this 29th day of April, 1980.
True Copy
Stephen W. Townsend
Clerk
Stephen W. Townsend
Clerk
— 10a —
MOTIONS/PETITIONS
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
Docket No. A-4071-79T2
Motion No. M-613-80
Before Part C
Judges: Fritz, Polow, Joelson
STATE OF NEW JERSEY,
vs.
MAMOON RASHID KAHLON,
MOVING PAPERS FILED: October 21, 1980
ANSWERING PAPERS FILED: November 13, 1980
DATE SUBMITTED TO COURT: November 17, 1980
DATE ARGUED:
DATE DECIDED:
ORDER
(Filed November 25, 1980)
This matter having been duly presented to the court,
it is hereby ordered as follows:
MOTION/FOR
SUMMARY AFFIRMANCE OF
CONVICTION
GRANTED DENIED OTHER
x
SUPPLEMENTAL:
This is a motion for summary disposition under R.
2:8-3(b), brought by the State. The motion was filed long
after the time limited for the bringing of such motion,
contrary to the express prohibition of the Rule. No leave
was sought to extend this time. We expressly disapprove
of this impropriety. However, defendant has not objected
on this account, and we now grant leave to the State,
nunc pro tunc, to file this motion.
—lla —
Defendant acknowledges as sound the apparent legal
basis for this motion. He defends against the motion on
the ground that the appeal in this matter presents facts
not substantially the same as those appearing in a prior
appeal (172 N.J.Super. 331 (App.Div. 1980)), the de-
termination in which the State here asserts to be the law
of the case. Defendant’s motion to supplement the record
in the present appeal was denied. Accordingly, the rec-
ord facts remain unchanged and are identical here with
those of record in the first appeal at least for purposes
of this motion.
Defendant’s argument distills to one urging that the
opinion in the first appeal contained findings by the
Appellate Division not supported by the record and er-
roneous. Whatever the fact may be, it remains that there
was no motion for rehearing respecting the first appeal,
there was apparently no petition for certification and de-
fendant’s motion for leave to appeal was denied by the
Supreme Court on April 29, 1980 (M-700, September
Term 1979).
Accordingly, the law of the case is that established by
the adjudication on the first appeal.
Following the first appeal, prosecuted by the State
on leave from an order in the trial court suppressing evi-
dence seized from the trunk of defendant’s car in which
the only issue concerned the legality of that search, de-
fendant entered a plea of guilty to possession of a con-
trolled dangerous substance with intent to distribute and
was sentenced. Thereafter defendant appealed. It would
appear from defendant’s brief resisting the State's mo-
tion for summary disposition that the sole issue being
raised on this appeal following the entry of a guilty plea
is the legal propriety of the search. For reasons noted
above that issue was determined in the prior appeal.
=
The State’s motion is granted and the judgment is
affirmed.
For The Court:
/s/ John W. Fritz
John W. Fritz, P.J.A.D.
Witness, the Honorable John W. Fritz, Presiding Judge
of Part C, Superior Court Of New Jersey, Appellate Di-
vision, this day of November, 1980.
Elizabeth McLaughlin
Clerk of the Appellate Division
= 1 —
SUPREME COURT OF NEW JERSEY
C-549
September Term 1980
STATE OF NEW JERSEY,
Plaintiff-Respondent,
vs.
MAMOON RASHID KAHLON,
Defendant-Petitioner.
ON PETITION FOR CERTIFICATION
(Filed June 5, 1981)
To the Appellate Division, Superior Court:
A petition for certification of the judgment in A-4071-
79 having been submitted to this Court and the Court
having considered the same;
It is ORDERED that the petition for certification is
denied.
WITNESS, the Honorable Robert N. Wilentz, Chief Jus-
tice, at Trenton, this 3rd day of June, 1981.
/s/ Stephen W. Townsend
Clerk
IIe
Dome -Supreme cout 9
FILED
No.
AUG N
815334
In Ax, Za L. STEVAS,
g n
*
October Term, 1980
MAMOON RASHID KAHLON,
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 FOR RESPONDENT
DAVID LINETT
Somerset County Prosecutor
L. GILBERT FARR
Assisiant Prosecutor
County Administration Building
Somerville, New Jersey 08876
(201) 526-4400
L. GILBERT FARR
On the Brief Attorneys for Respondent
$482 LUTZ APPELLATE PRINTERS, INC.
NY (212) 840-9494 © (516) 222-1606 © (914) 683-9363
NJ (201) 257-6850 © PA (215) 563-5587 © DC (202) 783-7288 © MA (617) 227-1133
No.
Supreme Court of the Hnitecl States
*
October Term, 1980
MAMOON RASHID KAHLON,
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 FOR RESPONDENT
QUESTIONS PRESENTED
1. Whether Robbins v. California is applicable to a case
where an open container is involved.
2. Whether the Appellate Division property granted
summary disposition.
TABLE OF CONTENTS
Page
Questions eo i
We Ge SD nccedcccsanscccccccecesessencccceses ii
L ii
Procedural . l
enn oe eee eee ee I
. 4
D. eee eee 5
TABLE OF CITATIONS
Cases Cited:
Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586 (1979).. 4, 5
Robbins v. California. U.S. —. 101 S. Ct. 2841
— . i, 5
State v. Patino, 414 A. 2d 1327, 83 N.J. 1, 414 A. 2d 1327
hh 2224“« 2 3
Wallach v. Williams, 52 N. J. 504, 246 A. 2d 713 (1968) .. 4
I
PROCEDURAL HISTORY
We are in substantial agreement with petitioner's procedural
history.
STATEMENT OF FACTS
On October 3, 1978, at approximately 4:20 p.m., State
Trooper Richard Toth was operating a stationary model K-55
Radar Unit at milepost 28 on Interstate Route 78, Bridgewater
Township, New Jersey (T5-4 to 8). At that time, a 1972 Buick
traveled eastbound through the radar set up at 30 m.p.h. in the
center lane of the highway (T5-9 to 10). The speed limit on
Route 78 is 55 m.p.h. (T5-15).
The Trooper pursued the vehicle for traveling too slow and
constituting a hazard on the roadway. In the Trooper's
experience, vehicles do not generally travel at so slow a speed on
Route 78; and in addition, this vehicle was in the center lane of
the highway when it should have been to the right (T5-19 to 22).
Its position was forcing numerous other vehicles to pass
improperly on the right (T5-23).
The Trooper pursued the vehicle for approximately 2 miles
and brought it to a stop at milepost 20 on Route 287
southbound (T6-1 to 3). There were three individuals within the
car. The petitioner, Mamoon Rashid Kahlon, was the driver of
the vehicle, a male passenger sat in the front seat and a female
passenger sat in the backseat of the vehicle. Trooper Toth
approached the vehicle. At this point, there is a factual
discrepancy in the testimony. The Trooper testified that he
approached the driver’s side of the vehicle with the petitioner
still seated behind the wheel and requested credentials. As soon
as he reached the front window of the vehicle, Toth detected the
odor of burning marihuana (T7-11 to 12). At that time, he asked
the petitioner to exit the vehicle and walk to the rear of the car
2
where he advised the petitioner of his observations (T7-19 to 25).
The petitioner, on the other hand, testified that he was standing
outside the vehicle when Trooper Toth approached, asked for
credentials, then took the petitioner to the side of the vehicle and
told the petitioner that he “reeked of marihuana.” (T49-
16—T50-4). In any event, it is undisputed that the Trooper did
note the odor of burned marihuana and so advised the
petitioner.
At this point, the petitioner stated that the two passengers
had smoked marihuana, whereupon the Trooper asked them to
exit the vehicle and attempted to question them regarding the
incident (T8-12 to 15). Questioning was difficult since the
passengers were French students and spoke little English (T8-17
to 22). The petitioner interrupted the questioning and admitted
to Trooper Toth that he had been smoking marihuana (T8-25).
The petitioner was advised of his Miranda rights. Toth then
merely patted down all three individuals (T9-2 to 4).
Trooper Toth then asked the three individuals to move to
the side of the roadway and searched the front passenger area of
the vehicle. That search revealed an unusually large half-burned
marihuana cigarette in the ashtray of the vehicle as well as a
clear plastic bag of marihuana and a pack of wrapping paper
over the driver's visor (T9-19 to 21, T11-4 to 7, T11-23 to 25). At
this time, Trooper Toth went to the rear of the vehicle and
advised all three individuals that they were under arrest for
possession of the marihuana (T12-12 to 14).
The Trooper handcuffed only this petitioner and returned
to check the rear passenger seat area of the vehicle for additional
contraband since one of the occupants had been sitting back
there (T13-2 to 9).
Once inside the rear passenger area of the petitioner's
vehicle, Trooper Toth detected a heavy odor of unburned
3
marihuana (T13-18 to 19). Trooper Toth is an officer with
extensive training in the investigation and detection of narcotics.
This training was outlined for the court below at the hearing
(T3—T4). The Trooper searched the rear compartment, lifting
the seat of the vehicle, but could find no other marihuana inside
the passenger area to account for the heavy unburned
marihuana odor (T14-9 to 10).
At that time, the Trooper retrieved the car keys from the
ignition and opened the trunk of the vehicle. As it opened, he
smelled a very heavy odor of unburned marihuana emanating
from inside the trunk of the vehicle. There were several suitcases
and containers in the trunk. The Trooper noted a cardboard box
with closed flaps and a 6 x 6 square opening on the top. The
box was not taped closed. He lowered his head to the box and
smelled a very strong odor of unburned marihuana. Through the
6 x 6 opening, Trooper Toth could see a green plastic bag, the
type of bag, which based upon his experience and training,
usually conceals large quantities of marihuana. (Trooper Toth
also saw stalks of raw marihuana protruding through holes in
the plastic bag.) Trooper Toth was positive that the odor was
coming from the box, which he seized and opened, revealing
approximately 30 Ibs. of unburned marihuana (T14-15 to 25,
T1I5-1 to 15). The Trooper also retrieved a bench beam scale
from the trunk.
At this time, Trooper Toth called foi a back-up unit, which
transported the two passengers to headquarters. Trooper Toth
and the petitioner waited at the scene for the arrival of a tow-
truck (T16-21 to 25). While en route to the station, the petitioner
indicated to the Trooper that over $3,000 in currency was located
in a plastic bag in the trunk of the car (T18-19 to 21). Upon his
arrival at headquarters, Trooper Toth seized the bag of money
which contained $3,731 (T21).
3
LEGAL ARGUMENT
Petitioner contends certification should be granted because
the Appellate Division refused to allow him to supplement the
record on appeal. Initially, it should be noted that the probable
cause hearing transcript was prepared for defense counsel on
April 9, 1979, whereas the motion to suppress was not heard
until June 1979. Thus, the transcript could have been, but was
not, utilized to impeach the Trooper's credibility at the hearing.
Since the transcript is not newly discovered evidence, and was
not introduced at the motion to suppress, we submit it could not
properly have been added to the record on appeal in any event.
It is clear that the Supreme Court's consideration of an appeal
of the decision of the Appellate Division, affirming the
judgment of the trial court, must be confined to the record made
in the trial court. Wallach v. Williams, 52 N.J. 504 (1968). Thus,
we submit that no error, much less federal constitutional error,
occurred in the denial of the motion to supplement the record.
We also submit that this case falls squarely within State v.
Patino, 83 N.J. 1 (1981) where the Court noted that, in the case
of a moving vehicle, probable cause is the minimal requirement
for a reasonable search permitted by the Constitution. /d. at 10.
No additional exigency beyond the moving or readily moveable
nature of the vehicle at the time the initial stop is made is
required. The search here did not initially go beyond the interior
of the vehicle. Only after the strong odor of unburned
marihuana was noted coming from the trunk did Trooper Toth
proceed to search the trunk.
Petitioner contends Arkansas v. Sanders, 442 U.S. 753, 99
S. Ct. 2586 (1979) should have been held by the Appellate
Division to apply retroactively. We submit that this aspect of the
opinion is mere dicta, the holding of the Court being that
Sanders is inapplicable under the facts here presented.
3
The Court, in its published opinion, ruled that Arkansas v.
Sanders did not apply to the instant case because the flaps of the
box from which the odor of marihuana was detected were not
closed. Further, there were tear holes in the bag which made the
marihuana visible to the trained eye of the officer. Thus, these
facts distinguished the instant case from Arkansas v. Sanders, as
well as Robbins v. California, _. U.S. (1981) which was
limited expressly to closed containers. A bag with stalks of
marihuana protruding therefrom is not such a closed container
and its possessor has failed by his sloppy packaging to exhibit a
reasonable expectation of privacy in the item searched. We
submit the plain view exception, as discussed in Robbins, is fully
applicable here.
Finally, we note that the Appellate Division expressly
entertained the State’s motion for summary disposition because
the petitioner failed to object to the untimely filing. It therefore
granted leave to file the motion nunc pro tunc, a procedure
authorized under New Jersey practice.
CONCLUSION
Based upon the above authority and the facts of the within
matter, the State of New Jersey respectfully requests this Court
to deny petitioner's petition for certification.
Respectfully submitted,
0 DAVID LINETT
Attorney for Respondent
L. GILBERT FARR
On the Brief
Re ñ ᷑?˙8 ꝛ•³m n ² lbb c ç ꝗdd.
joug Aidey
S Une
Office - Supreme Court, U.S.
FILED
Sep iz? 1981
No. 81-234 | ALEXANDER L STEVAS.
In the
Supreme Court of the United States
* Octroser Term, 1980
MAMOON RASHID KAHLON,
Petitioner,
vs.
STATE OF NEW JERSEY,
On Petition for Writ of Certiorari to the Superior Court
of New Jersey, Appellate Division.
PETITIONER'S REPLY TO RESPONDENT'S
BRIEF IN OPPOSITION
Micnakl. L. Prirzxer, Lop.
Micuaet L. Pritzker
R. Brent Dante.
134 North LaSalle Street
Suite 2100
Chicago, Illinois 60602
(312) 372-2225
Counsel for Petitioner.
The Scheffer Press, Inc—(312) 263-6850
QUESTIONS PRESENTED
I.
Whether Arkansas v. Sanders Is Controlling, Retro-
actively, To A Case Arising After This Court’s Decision
In United States v. Chadwick, Where The Evidence
Against Petitioner Was Contained In A Closed Card-
board Box, External Examination Of Which Did Not
Reveal Its Contents And Which Was Seized From The
Locked Trunk Of Petitioner’s Vehicle Without Warrant
Or Valid Exception?
II.
Whether When A State Grants To A Defendant In A
Criminal Case The Right Of Appeal From The Trier Of
Fact And The Appellate Court Sua Sponte Makes
Findings of Fact Not Otherwise In Or Supported By
The Record, The Appellant Then Has The Right To A
Review Of Said Additional Findings Of Fact?
TABLE OF CONTENTS
PAGE
Questions Presented — i
Table of Contents : „
Table of Citations ii
The Respondent's Statement Of Facts Is Incorrect
And Is Controverted By The Testimony Of
Trooper Toth 1
Argument ——
Conclusion 8
TABLE OF CITATIONS
Cases Crrep:
PAGE
Arkansas v. Sanders, 442 U.S. 753 (1979) 6
Bible, et al. v. Louisiana, ........ — (No. 80.
I 2K 7
Robbins v. California, ........ U.S. (No. 80-148,
July 1, 1981) — 7
State v. Kahlon, 172 N.J. Super. 331, 340 (App.
Div. 1980)
United States v. Chadwick, 433 U.S. 1 (1977) ........ 6,7
Wallach v. Williams, 52 N. J. 504 (1966) 5
Ix Tue
SUPREME COURT OF THE UNITED STATES
Ocroser Term, 1980
N. 0. 81-234
MAMOON RASHID KAHLON,
Petitioner,
vs.
STATE OF NEW JERSEY,
Respondent.
On Petition for Writ of Certiorari to the Superior Court
of New Jersey, Appellate Division.
PETITIONER’S REPLY TO RESPONDENT'S
BRIEF IN OPPOSITION
The Respondent’s Statement Of Facts Is Incorrect And Is
Controverted By The Testimony Of Trooper Toth.
Although the record is clear and unambiguous, your
Petitioner is constrained to correct the same errors and
misinterpretations of the record that have been noted to
the New Jersey Courts and the Respondent herein on at
least six prior occasions. Completely disregarding the
testimony of Trooper Toth, the Respondent asserts that
no back up unit arrived at the scene of Petitioner’s
traffic arrest until after the search of the locked trunk
_
and the closed containers within it had occurred.
(Respondent’s Brief - 3). This claim carries with it the
false implication that Trooper Toth was in the area
with three arrestees, only one of whom was handcuffed,
and was therefore in some form of danger. It was pre-
cisely this misapprehension of fact that formed the
cornerstone for the Appellate Division’s erroneous finding
of exigency in the State’s interlocutory appeal. State
v. Kahlon, 172 N.J. Super. 331, 340 (App. Div. 1980).
The testimony of Trooper Toth belies this fiction.
The Trooper testified that after he informed the French
students and your Petitioner that they were under arrest
“almost simultaneously a back up unit arrived, another
trooper. (Transcript - Motion to Suppress p. 36). Based
upon the admissions of Mr. Kahlon regarding the ‘‘roach”’
and the small bag of marijuana exculpating the others,
Toth testified that he had “the other trooper [take]
the two French speaking people to the station” for
release. (Transcript - Motion to Suppress, p. 16). And
further, Toth testified that he handcuffed Mr. Kahlon
at the time of his arrest and placed him in the police
car. (Transcript Motion to Suppress p. 36). Trooper
Toth testified similarly at the probable cause hearing on
November 9, 1978. He there testified consistent with his
prior testimony that after he had arrested the subjects
another trooper was driving by and he stopped, (Tran-
script - Probable Cause Hearing p. 12), and based upon
the inculpatory admissions of Mr. Kahlon regarding the
“roach” and the small bag of marijuana, Trooper Toth
then had the other two subjects taken to the barracks
by the other trooper where they were released. (Tran-
script - Probable Cause Hearing p. 13; Motion to Suppress
P. 21-22). Trooper Toth testified that Mr. Kahlon was
cooperative and that he never felt any danger.
~
In regard to the cardboard box seized from the locked
trunk of Petitioner’s vehicle, Trooper Toth testified that
it was closed and that all he could see through the aper-
ture left by the flaps was green plastic. (Transcript - Mo-
tion to Suppress p. 14, 15). The record is silent as to
whether the box was taped shut, however, it is clear
that Trooper Toth had to open the flaps in order to
search the cardboard box. Toth then noticed that the
bag which he removed from the box was tied shut.
(Transcript Motion to Suppress p. 15). Only after the
cardboard box was searched and the bag removed did
Toth notice “two or three tear holes,” in the bag, one of
which he tore open in order to ascertain the contents.
(Transcript - Motion to Suppress p. 15). Contrary to
the parenthetical allegations of the Respondent, there is
absolutely no evidence that Toth ever saw ‘‘stalks of raw
marijuana protruding through holes in the plastie bag.”
(Respondent’s Brief p. 3).
ARGUMENT
It is readily apparent that the Respondent fails to
understand the Fetitioner’s second question presented for
review. The denial of the Petitioner’s motion for supple-
mentation of the record is only a minor aspect aggra-
vating the true issue: whether the Petitioner was afforded
his due process right to an appeal to which he is entitled
under New Jersey law? The Petitioner contends that
where an appellate court, without ever hearing the evi-
dence or observing the demeanor of the witnesses, re-
verses the judgment of the trial court on the basis of
findings of fact made independently of the record below,
controverted by the actual evidence, and from which no
further review is allowed, that Petitioner has thereby
been denied a right to which he is entitled, i.e, a fair
appellate review. To argue that an appellate court can
sua sponte make findings of fact not supported by the
record, thereby reversing the judgment of the trial court
where there is no right to further review and discretion-
ary review is denied, does not raise a federal constitu-
tional error is ludicrous. The enormity of such arbitrary
actions offends the concept of fundamental fairness and
renders the safeguards provided by the right of appellate
review of factual findings pursuant to New Jersey law
a nullity.
Despite the Respondent’s suggestions, in fact, there
was no necessity for Petitioner to impeach Trooper
Toth’s testimony at the suppression hearing with his
testimony at the probable cause hearing because Trooper
Toth’s testimony at both hearings supported the Peti-
tioner’s assertion that the two students had been taken
_ on
from the scene to be released and that the Petitioner
was handcuffed in the police vehicle at the time of the
search of his trunk and its contents, thus removing the
possibility of any so-called exigency. Moreover, Trooper
Toth testified that Mr. Kahlon was cooperative and that
he did not feel any jeopardy. The motion to supplement
the record in the Appellate Division was made solely to
demonstrate the orignal error made at the interlocutory
stage. It must be borne in mind that the trial court ruled
in favor of the Petitioner and suppressed the evidence
and that that finding was therefore cloaked with a pre-
sumption of correctness. Since the Appellate Division
reversed the judgment of the trial court in the instant
case, the case of Wallach v. Williams, 52 N.J. 504 (1968)
relied on by respondent is inapposite.
The supplementation of the Appellate record sought
by Petitioner clearly indicated the injustice done at the
interlocutory appeal level, but whether supplementation
should have been granted or not is only one facet of the
issue. The Petitioner submits that the Appellate Division
was thereby put on notice that it had a duty to re-examine
its erroneous interlocutory independent fact-finding by
an examination of competent evidence already in the
record, if your Petitioner was to be given his opportunity
to prosecute a fair appeal. Instead, the same panel of
the Appellate Division that decided the interlocutory
appeal prosecuted by the State arbitrarily and capricious-
ly granted summary affirmance of your Petitioner’s
Appeal from the final judgment based on the tenuous
principle of judicial convenience — the “law of the case”
doctrine. The Petitioner respectfully submits that this
constitutes a due process violation.
a
In response to the Petitioner’s primary issue, i.e., the
applicability of United States v. Chadwick, 433 U.S. 1
(1977) and Arkansas v. Sanders, 442 U.S. 753 (1979),
the Respondent argues first that the retroactivity issue
was mere dicta, and second, that in any event Sanders
should not apply in this situation. The “facts” relied
on by the Respondent are not supported by the record.
The first “fact” asserted by the respondents is neither
supported by the evidence nor the opinion of the Appellate
Division. The respondent argues that Sanders should not
apply because the flaps of the cardboard box “were not
closed.” (Respondent’s Brief p. 5, Respondent’s Questions
Presented I). The Appellate Division disagreed, finding
rather that the flaps did not completely cover it, but noted
that the opening was covered with green plastic. (Petition
for Certiorari p. 7a). Trooper Toth testified that the
“flaps were such that the box was closed.” (Transcript -
Motion to Suppress p. 14). All that could be seen was
green plastic, (Transcript - Motion to Suppress p. 15,
42) in a cardboard box that was as closed and as sealed
as it could practicably be. Trooper Toth then opened the
closed flaps and searched the interior of the cardboard
box. Toth testified that [all I saw was the square, some-
thing square and plastic around it, and as I looked on
the sides there were” “two or three tear holes in the bag.
The bag was tied shut.” (Transcript - Motion to Suppress
p. 42, 15). Trooper Toth then ripped open one of the
holes and observed marijuana. (Transcript - Motion to
Suppress p. 15).
The tear holes were invisible until after Toth searched
the cardboard box and removed the bag, and there is no
testimony that marijuana was visible until after he had
torn one of the small holes open. The alleged odor of
ati.
marijauna provided no justification for the warrantless
search of the box and could only properly be used as an
averment in an affidavit for a search warrant. United
States v. Chadwick, supra at 5 (trained police dog’s posi-
tive response did not override warrant requirement).
Again, the Petitioner is constrained to note that there
is not one jot of evidence indicating that “stalks of
marihuana” protruded from anywhere. (Respondent’s
Brief p. 5).
The Petitioner respectfully submits the case of Robbins
v. California, ........ — , (No. 80-148, July 1, 1981)
has settled both aspects of the Appellate Division’s treat-
ment of Sanders in favor of the Petitioner. First, Robbins
held Sanders applicable to a search conducted in 1975.
And second, this Honorable Court in Robbins rejected
the so-called doctrine of worthier containers as being
unworkable. Robbins v. California, supra at 29 Cr.L.
3117. As in Robbins, this case involved an opaque green
plastic bag, except that here the bag was further pro-
tected by being encased in an egg crate whose “flaps
were such that the box was closed,” and unlike Robbins,
the box was located in the locked trunk of Petitioner’s
vehicle. As in Robbins, however, visual examination of
the exterior of the box did not reveal the nature of its
contents. (Transcript - Motion to Suppress p. 14). The
Petitioner respectfully proposes that the summary relief
granted the petitioners in Bible, et al. v. Louisiana, ........
— (No. 80-1080, July 2, 1981) would be a just
disposition of the instant Petition.
Wherefore, your Petitioner, Mamoon Rashid Kahlon,
prays this Honorable Court to grant his Petition for
Certiorari and to provide such relief as this Honorable
Court deems fit and proper.
Respectfully submitted,
Micnakl. L. Parirzxer, Lop.
Micuart L. Pritzker
R. Brent Dax I.
134 North LaSalle Street
Suite 2100
Chicago, Illinois 60602
(312) 372-2225
Counsel for Petitioner.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.