Record and brief — Nichol v. Oregon

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g1-2064 | Cte

In the Supreme Court

of the United States

OCTOBER TERM, 1982

No.

GERALD NICHOL,

Petitioner,

vs.

STATE OF OREGON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF OREGON

SUBJECT INDEX

Questions Presented for Review ............ 1

Grounds for Jurisdiction .................. 3

Statement of the Case... 22... 0c ccc cccees. 4

ER REE Se . Ee 12

Argument as to Search and Seizure .......... 16

r T 19

INDEX TO APPENDIX

r 20

Denial by Oregon Supreme Court on

Petition for Review

/ A 20

Opinion of Court of Appeals

/ eS 6 Coes oa 26

Opinion and Order of The Honorable

Ted Abram, dated December 9, 1980.

Fk AAA. ene as 28

Order of The Honorable Donald A. W. Piper

dated March 5, 1981

Appendix K Be le we 5 30

%%%%%/%%§%êO%6560 ecias vadins vs 31

Memorandum Brief (showing first

date of first raising of Constitutional

question) Dated April 11, 1980.

TABLE OF AUTHORITIES

Cases Cited

Arkansas v. Sanders, 442 US 735, 61 L Ed 2d 235,

D are ae rs tare

Barker v. Wingo, 407 US 514, 92 S Ct 2182, 33 L Ed

r ͤr r

Brinegar v. United States, 338 U.S. 160, 175, 93 L

Ed 1879, 69 S Ct. 1302 (1949) ..............

Chambers v. Maroney, 339 US 42, 90 S Ct 1975, 26

r vce nes epee

New York v. Belton,

Ed 768, 101 S Ct.

“ee „ ũ*—²ð 22

iii

Robbins v. California.. U.S.

2d, 744, 101 S Ct.

State v. DeChamplain, 46 Or App 299, 233, 611 P2d

„ kee ee eg Ole

State v. DeLong, 43 Or 183, Pad

—.. . SS TY ETS TE eee

State v. Elkins, 245 Or. 279, 422 P2d 250 ........

State v. Green, 284 Or. 337, 591 P2d 1362 (1979)

State v. Ivory, 270 Or. 499, 564 Pad 1039 (1977)

State v. Meikle, 44 Or App 91, 605 P2d 301 (1980) .

United States v. Chadwick, 433 US 1, 97 S Ct 2476,

r ds ci cewers dat ceteane

United States v. Jeffers, 342 US 48, 51, 72 S Ct 93,

t,, ⁰ paw an boas

United States v. Johnston, 497 F2d 397 (9th Cir

—— ˙ mm mm. ““

United States v. Thomas, 16 USCMA 306, 36 CMR

ß. are oo tacts

iv

Constitutional and Statutory Provisions

ig ee ⁰˙·¹¹ TT— . eee

4 BRC er

/ / ͤ oe...

9 ˙¹ N TRE oi cecnecccsesercens

F avs Ov Ga46ic Vaud t dee cceeeut

In the Supreme Court

of the United States

OCTOBEK TERM, 1982

No.

GERALD NICHOL,

Petitioner,

STATE OF OREGON,

Respondent.

Petition for a Writ of Certiorari to the Supreme Court

of the State of Oregon

QUESTIONS PRESENTED FOR REVIEW

1. When a closed container, innocent in

appearance, seized from a vehicle, but not opened. and

held for six hours during which time a Search Warrant

is obtained, is the seizure justified by the subsequent

Warrant, or is the seizure itself subject to the same

tests of reasonableness and probable cause as those

tests applied to the search itself under United States

v. Jeffers, 342 US 48, 51, 72 S Ct. 93, 96 Led 59 (1951);

United States v. Thomas, 16 USCMA 306, 36 CMR

2

472; and Brinegar v. United States, 338 U.S. 160, 175,

93 Led 1879, 69 S Ct. 1302 (1949).

2. Is the original seizure of an innocent appearing,

flat letter-sized sachel, zipped closed, located in the

passenger portion of a vehicle justified by the finding

of evidence of large quantities of marijuana in the

trunk and a small quantity of marijuana (less than an

ounce) on a passenger-co-defendant and a roach clip in

the passenger portion of said vehicle. New York v.

Belton, U. S. , 69 LEd 768,

101 S.Ct. 7 Robbins v.

California, U.S. , 69 LEd 2d, 744,

101 S.Ct.

3. Do exigent circumstances exist justifying the

opening of the trunk of a vehcile under circumstances

where one of the passengers is in possession of less

than an ounce of marijuana, a roach clip is found in the

passenger portion of the vehicle, and the Defendant-

driver has stated that he didn’t know if there was

marijuana in the car, or how much was in the car.

4. Do exigent circumstances exist justifying the

seizure of a closed container innocent in appearance,

when found in the rear seat portion of a vehicle under

circumstances where the defendants are placed in

custody and the vehicle is not seized and no search

warrant for said vehicle obtained. New York v. Belton,

* U. 8. 69 LEd 768, 101

S.Ct. ; Robbins v. California, U.

8. , 69 LEd 2d, 744, 101 S.Ct.

5. Has a Defendant’s right, under the United

3

States Constitution to a speedy trial been violated

under circumstances where a 14 month post-

indictment, post-ar~est delay occurred, with nine

months of said delay being the time required by the

Circuit Court trial judge to rule on a Motion to

Suppress Evidence under Barker v. Wingo, 407 U.S.

514, 33 LEd 2d 101 (1972); as adopted in State v.

Ivory, 278 Or. 499, 654 P2d 1039 (1977) and other

cases indexed and cited within the body of this brief.

GROUNDS FOR JURISDICTION

Defendant was found guilty after a trial without

jury on the 6th day of March, 1981 of the charge of

possession of amphetimines as set out as Count I, and

was found not guilty by the same judge on the same

day of Count II, charging possession of marijuana

over one avoirdupois ounce. This guilty finding u 8

appealed to the Court of Appeals of the State of

Oregon on the 19th day of May, 1981 and was

affirmed by said Court on the 19th day of December,

1981. The Petition for Rehearing which serves also as

a Petition for Review in the Supreme Court of the

State of Oregon, was finally denied by the Supreme

Court on March 3, 1982. There has been no request or

order for an extension of time within which to petition

the Supreme Court of the United States for certiorari.

The jurisdiction of the Supreme Court of the

United States in invoked under 28 U. S. Code, Section

1257, Paragraph 3.

Constitutional provisions relied upon with their

4

cjtations appear as follows:

“The right of the people to be secure in their

persons * * * papers and effects against

unreasonable searches and seizures shall not be

violated and no warrant 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.

U.S. Const. Amend. IV

No person shall * * * be deprived of life,

liberty or property without due process of law.

U.S. Const. Amend. V

No State shall * * deprive any person of life,

liberty or property without due process of law, nor

deny to any person within its jurisdiction the equal

protections of the law.” U.S. Const. Amend. XIV

“In all criminal prosecutions the accused shall

enjoy the right to speedy and public trial by an

impartial jury of the State and district where the

crime shall have been committed * * * and to have

the assistance of counsel for his defence. U. S.

Const. Amend VI

STATEMENT OF THE CASE

The acts for which the Defendant is accused

occurred January 18, 1980. The Defendant was

released on bail shortly thereafter, and was tried on

= March 4, 1981, Thirteen and one-half months from the

date of the incident. The trial date was originally set

for April 16, 1980.

5

On the 11th day of April, 1980 the Defendant filed

a Motion and Affidavit to suppress the evidence,

citing as authorities, United States Constitutional

Rights under the Fourth Amendment and the

Fourteenth Amendment to the Constit.tion of the

United States.

On the 15th day of April, 1980 the Defendant

affirmatively and in writing, waived his right to a jury

trial and agreed to proceed with the trial as scheduled

on the 16th day of April, without a jury.

The day set for trial the State of Oregon filed a

Response to Defendant’s Motion to Suppress and the

Court did not proceed with the trial until March 4,

1981. By that time the Defendant’s attorney had

resigned from the Bar, and left the jurisdiction and

the Defendant was required to retain another

attorney, who filed a Motion to Dismiss, based upon

the failure of the State to grant a speedy trial and

cited therein the Sixti Amendment to the

Constitution of the United States as incorporated by

the Fourteenth Amendment to the Constitution of the

United States.

This Motion was denied just prior to trial and the

without a jury was held on March 4, 1981.

Those above recited facts in this Statement of the

Case pertains to the question involving a speedy trial.

The Appellate court did not answer any ff the

arguments submitted to them regarding that

assignment of error, but included on the following

footnote in their opinion:

*

7 7

6

“Footnote 1: A second assignment of error

involving denial of Defendant’s Motion to Dismiss

for lack of speedy trial does not require

discussion.

This issue was included as a basis for rehearing

and for Writ of Review filed with the Supreme Court

of Oregon and review was denied.

As to the other questions the Statement of the

Case involves the following facts:

Defendant was acquitted in the trial court of

possession of marijuana (Count II) and was convicted

of possession of amphetimines (Count I) said

amphetimines being found inside of a flat,

composition-type sachel, closed with a zipper, of

approximate stationery size.

Defendant was stopped by Trooper Collins for

speeding. It is agreed the stop was valid. As Collins

approached the driver’s window, he smelled

marijuana smoke. The Defendant was the driver.

There was a passenger beside him (Laude). Collins

requested and received Defendant’s identification. As

Collins proceeded with his preliminary investigation,

another officer, Routt, arrived to assist. At Collins

request, Defendant got out of the car. Collins then

asked Defendant if there was marijuana in the car,

and if so, where it was located. Initially Defendant

said he did not know. He then admitted that

marijuana was somewhere in the car, but claimed he

did not know where. Defendant also said, in response

to the questioning by Collins, that he did not know

7

how much marijuana was in the car or whether his

passenger, Laude, possessed any. Collins conducted

a pat down frisk of Defendant’s outer clothing. He

did not find any contraband on Defendant. Collins

then had Laude get out of the car. When questioned

about the odor of marijuana, Laude responded that he

had some marijuana on him and that he had just

finished smoking a marijuana cigarette. During this

conversation Collins observed, in plain view, a plastic

bag partially protruding from Laude’s pocket. It

appeared to contain less than an ounce of marijuana

(in Oregon less than an ounce of marijuana is not a

crime, but an infraction punishable by a maximum

$100.00 fine). Following a pat down frisk of Laude for

weapons, Collins searched the passenger

compartment of the car. He found a scissor type

clamp that was stained brown and that smelled of

burnt marijuana. In the backseat he found a sachel

that has been previously described as a flat,

stationery size, sachel, zipped closed. He agreed that

this sachel, in and of itself, gave no appearance of

impropriety or any odor identifiable with contraband

and had no characteristics that would reveal its

contents. The officer took the sachel into his

possession, removed it from the vehicle, but he did not

open the sachel, but placed it away from the control of

the Defendant. The police officer then asked whether

or not he could search the vehicle, and the Defendant

replied,“no’’. The police officer, nevertheless, removed the

ignition key and opened the trunk. There he found a

8

closed, brown paper bag, some suitcases, and a metal

toolbox. He lifted the bag and determined it was light

in weight. He claimed he detected an odor of

marijuana coming from it and therefore opened it,

where inside he found a white, opaque, plastic bag,

with a stem, which he believed to be a marijuana stem

protruding from a hole in the plastic bag. He opened

the plastic bag and found a large quantity of

marijuana.

At that point he placed both the Defendant and

the passenger under arrest. The officer then seized the

sachel and testified that he seized it because he found

the marijuana in the trunk. He testified further that

he would not have seized the sachel and taken it into

his possession if he had not found the marijuana in the

trunk since the marijuana found on Laude was less

than an ounce and would normally not cause him to

arrest its possessor. He did not claim that he seized it

pursuant to a lawful arrest, because the sachel had

already been removed prior to the arrest.

The officer did not impound the vehicle, nor seek a

Search Warrant for the car, nor for the suitcases in the

trunk of the car, and did not complete the search of

the vehicle as to the suitcases in the trunk. The sachel

was held at the police station for six hours at which

time it was opened, pursuant to a warrant that had

~ been obtained in the meantime and in it were the

amphetimines for which the Defendant was convicted

of possessing.

9

In State v. Elkins, 245 Or. 279, 422 P2d 250, at

page 284 the following language appears:

“The following question is posed by this case.

When an officer has made a lawful arrest and is

conducting a lawful search and observes

something he does not know to be contraband but

of which he is suspicious, may he take it and be

sustained in his seizure if his suspicions

subsequently prove to be well founded? * * * * *

* * * In United States v. Jeffers, 342 US 48, 51, 72

S.Ct. 93, 96 LEd 59 (1951) the court said: ‘the

Fourth Amendment prohibits both unreasonable

searches and unreasonable seizures, and its

protection extends to both ‘houses’ and ‘effects.’ *

* *” (footnote omitted)

In State v. Chinn, supra, 274, this court used the

following language relative to the rules applicable

to seizure:

We hold that the limits of reasonableness

placed upon the search, and which we have

discussed above, are equally applicable to

seizures * * K * *

* * * in United States v. Thomas, 16 USC MA 306,

36 CMR 472 * * * * *

Search and seizure are separate acts. Each must

satisfy the constitutional requirement of

reasonableness. A search can be legal, yet the

resultant seizure of property or papers discovered

in the course thereof may be illegal.

10

It is with seizure of the bottle that we are here

concerned and not with any antecedent search. The

Government urges that such was reasonable under

the circumstances, but we must disagree. Whether

a seizure is reasonable depends upon the existence

of probable cause for that action. (Citations

omitted) There must be facts and circumstances

from which the probability of the item’s

contraband nature may be inferred - ‘the factual

and practical considerations of everyday life on

which reasonable and prudent men, not legal

technicians act.’ Brinegar v. United States, 338

U.S. 160, 175, 93 LEd 1879, 69 S Ct. 1302 (1949).

There is simply no basis shown on this record for

any conclusion by Sergeant Lively that the seized

bottle contained narcotics or that accused was

under its influence. Indeed, he did not even testify

he suspected such to be the case

and further on in the Elkins case the Court, speaking

now as to the facts of the Elkins case itself, quotes as

follows:

If the rule were otherwise, an officer who desired

to inculpate an arrested person in another crime,

could seize everything in such persons immediate

possession and control upon the prospect that on

further investigation some of it might prove to

have been stolen or to be contraband. It would

open the door to complete temporary confiscation

of all an arrested person’s property which was in

his immediate possession * * *’’,

11

As indicated previously, the Defendant was

acquitted of possession of the marijuana found in the

trunk, upon the basis that the Court found

insufficient evidence of his knowledge or right to

custody or control over the contents of the trunk. All

of the federal constitutional questions were raised in

the trial court prior to the denial of the Motion to

Suppress or the trial court judgment.

The Circuit Judge denied the speedy trial

argument contending that the United States

Constitutional provisions were not violated and

denied the Motion to Suppress the evidence in an

opinion, citing the Fourth Amendment to the

Constitution of the United States and declaring that

the United States Constitutional provisions were not

violated. The Oregon Court of Appeals based its

decision upon federal cases that are interpretive of the

United States Constitution including the cases that

have been decided just shortly before their opinion

was rendered, as well as state cases that had

interpreted the Federal Constitutional provisions.

Robbins v. California, supra and New York v. Belton,

supra; Chambers v. Maroney, 399 US 42, 52, 90 S Ct

1975, 26 L Ed 2d 419 (1970); State v. Green, 285 Or.

337, 340, 591 P2d 1362 (1979); State v. DeChamplain,

46 Or App 229, 233, 611 P2d 334 (1980); State v.

DeLong, 43 Or. 183, Pad , (1979); United

States v. Johnston, 497 F2d 397 (9th Cir 1974); United

States v. Chadwick, 433 US 1, 97 S Ct 2476, 53 L Ed

12

2d 538 (1979); Arkansas v. Sanders, 442 US 753, 99 8

Ct 2586, 61 L Ed 2d 235 (1980).

The speedy trial question was never explained by

the Oregon Appellate Court, as indicated above.

ARGUMENT

A fourteen month post-indictment, post-arrest

delay, which causes a defendant to lose the attorney

he has chosen and therefore arguably violating that

portion of Amendment VI which guarantees him legal

representation at his trial, should be considered a

lengthy enough delay and should be considered as

prejudicial enough to the defendant to invoke the

United States Constitutional protections designed to

protect him.

The only difference in this case and in the other

speedy trial cases where the courts have held that the

Defendant’s rights were violated is that this case

involves a delay that was caused by a Circuit Court

Judge who was cogitating a difficult question as to

search and seizure. In that regard, Defendant

recognized, as set out in State v. Meikle, 44 Or App

91, 605 P2d 301 (1980):

Unlike a prosecutor, however, a Court is not an

adversary to a defendant and the delay of the court

is not necessarily for purposes which are adverse

to defendant’s interest * * * moreover the

judiciary s responsibility to safeguard the rights of

the parties at times may, of necessity, override the

13

effectuation of expeditious administration of

justice“.

However, such a consideration should only go to

the reason for the delay. The Defendant is not asking

to punish the State for a failure to provide a speedy

trial, but is asking that the protection afforded him be

enforced whether the unreasonable delay is caused by

the Courts, the District Attorney or the police. The

Defendant asks for review by the Supreme Court of

the United States because it appears to be a

legitimate question of extreme public concern as to

the accelerating delays in the court systems. If the

delays are partly attributed to judges, then judges

should face them and explain their sign.ficance. The

Oregon Court of Appeals didn’t do that, and rather

than publish an opinion that contained allegations

that a judge had unreasonably delayed the trial they

simply, by footnote, stated there was an assignment

of error that deserved no discussion. On the surface

this would appear to be less than candid when the

error really involved the judiciary itself. The

Defendant, at no time, caused ny of the delay nor

asked for any delay, nor did he ie papers untimely

that could have caused the delay. The attorney

representing the Defendant was available for many

months, and resigned from the Bar and withdrew

from the case on December 17, 1980. The attorney

who finally tried the case for him had only two weeks

with him before the trial and had not been at any of

the preliminary matters or preliminary investigations

14

or hearings involving the search and seizure. In

Barker v. Wingo, 4097 U.S.514, 33 L Ed 2nd 101

(1972) as adopted in State v. Ivory, supra, it was

determined that there are four matters in determining

whether a speedy trial has been denied, although

prejudice (number 4) is not necessarily required. They

are:

1. The length of the delay.

2. The assertion of right to speedy trial by

defendant.

3. The reasons for the delay.

4. Prejudice, if any, to the accused. (not always

required).

If it is found that Defendant’s Constitutional

entitlement to a speedy trial has been denied,

remedy is dismissal, which is a bar to further

prosecution for the same offense.

When the period of time that has elapsed after

the defendant is held to answer is of such length as

to be manifestly excessive and unreasonable it

may be incumbent on the State to justify this

delay in order to avoid dismissal of the

indictment’.

The District Attorney had the same evidence the

day after this incident he had a year and three months

later. The length of the delay apparently would be

considered in light of who caused the delay, and more

particularly, did the Defendant do anything to cause

the delay?

15

In this case there is nothing in the record and it

has never been claimed that the Defendant did

anything to cause the delay, but the Judge, who is not

an advocate and admittedly who was not acting for

improper purposes caused the delay in his inability to

promptly decide an important question of evidence.

None of this is the Defendant’s fault.

As to Number 2, the Defendant did ask for a

speedy trial because, he, in writing, waived his right to

a jury and asked to proceed on the same day the case

was set for the hearing on the Motion to Suppress and

there is no place in the file where he ever did anything

except ask for his trial.

In the Barker v. Wingo, supra, case, the following

appears:

A more neutral reason such as negligence should

be weighed less heavily, but nevertheless should be

considered, since the ultimate responsibility for

such circumstances must rest with the government

rather than with the defendant.” (emphasis added)

The final requirement is prejudice and this

prejudice may be inferred from the delay itself,

because the witnesses may lose recollection and the

defendant himself may be subject to human error in

his recollection of the facts, but in addition to that, in

this case, Mr. Coe, the attorney for the Defendant,

was available until December 31, 1980. That was 11

16

months and 13 days after the indictment for which the

Defendant was charged was rendered by the Grand

Jury and after the Defendant had been arrested. The

attorney he obtained came into the case only two

weeks before the trial, was required to begin at the

beginning and proceed to trial without the benefit of

the preliminary motions and arguments and rulings as

to search and seizure. Again, according to Barker v.

Wingo, supra,

“The length of the delay in some cases may be

presumptively prejudicial and assuming that it

was not caused by the defendant in that the

defendant desired a speedy resolution, proof of

prejudice may be unnecessary”.

ARGUMENT AS TO SEARCH AND SEIZURE

The reason that Defendant contends the Supreme

Court of the United States should accept review as to

the search and seizure question is because the Oregon

Court has ignored the underlying principle involving

the seizure of a closed container.

The opinion of the Court of Appeals would

indicate that since the vehicle was capable of being

moved and the Defendants could not be arrested since

there was no probable cause they had committed a

crime for which they could be imprisoned, therefore

17

exigent circumstances existed authorizing the seizure

of a closed container within the vehicle itself.

This is not correct. The police had every right if

there was probable cause to seize the vehicle and

obtain a search warrant as to the vehicle. They further

had every right to arrest the defendants for an

infraction and hold them until suitable bail had been

arranged.

Even more important is that at the time they

seized the closed container (distinguished from the

marijuana) they had every right to arrest the

defendants because they had found a large quantity of

marijuana in the trunk. At that time they had the

right to seize the vehicle, arrest the Defendants and

cause a search of the entire vehicle including all of the

closed containers included therein.

The Court of Appeals of the State of Oregon

engaged in circular reasoning, because they kept

referring to exigent circumstances at a time when

they said the police had no probable cause to arrest

the defendants. What exigent circumstances are there

in two people driving down the road in a vehicle, with

a letter size, flat sachel in the back seat of the car, and

less than an ounce of marijuana in the possession of a

passenger. All persons who operate vehicles under

such a theory would transmit to the police exigent

circumstances because the vehicle has wheels,

allowing the search without probable cause under a

18

theory that the persons could drive away. There was

nothing in this case creating exigent circumstances at

the time of the opening of the trunk except that the

parties were in a vehicle. There was certainly nothing

to establish exigent circumstances at the time of

seizing the closed container because at that time the

police already had sufficient evidence to arrest the

persons in the car if the search of the trunk was

lawful.

The Court of Appeals has stated they have not

ruled that the presence of a small amount of

marijuana in a vehicle authorized the search of the

trunk, but the Defendant was found innocent of any

contraband in the trunk and the Court of Appeals

neglected to mention how any admission of the

defendant taken with the small amount of marijuana

in the vehicle could in any way establish probable

cause that an innocent appearing, closed, flat,

stationery-type sachel contained contraband and that

is the evidence that was used to convict the defendant

of a crime for which he is appealing.

The Oregon court went to great lengths to

distinguish recent United States Supreme Court

Cases, New York v. Belton, supra, and Robbins v.

California, supra, and they have brought up additional

facts: the smell of marijuana, the light weight of the

bag (although the bag had to be disturbed by the

officer in order for its weight to be determined), but

19

they have not mentioned in their opinion how the

sachel, as a closed container, (not the paper bag of

marijuana) could be seized, without a warrant, under a

theory that probable cause existed as to its contents.

CONCLUSION

For the reasons stated hereinabove, the Petition

for Writ of Certiorari should be granted.

.

Respectfully submitted,

SAM A.MCKEEN

Attorney for Defendant

ee — ee

—— — —t

—

20

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

APPENDIX A

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Case Name: State v. Nichol

Case Number: A21085

X The prevailing party is Respondent

R 2 4 24%

The following entries will be made as appropriate at

the time this decision becomes final. Attorneys see

rules 11.05 & 11.10. The Supreme Court denied

petition for review on February 24, 1982. Date final

decision issued: March 3, 1982.

APPENDIX B

In the Court of Appeals of the State of Oregon

Opinion: Filed: December 14, 1981

State v. Nichol, Case Number A21085

GILLETTE, P.J.

Defendant appeals his conviction for possession

of a controlled substance. ORS 475.992(4). He assigns

as error the denial of his motion to suppress evidence

21

seized as a result of a warrantless search of his car.'

We affirm.

Defendant was stopped by Trooper Collins for

speeding. It is agreed that the stop was valid. As

Collins approached the driver’s window, he smelled

marijuana smoke. The car contained defendant and

one passenger, Laude. Collins requested and received

defendant’s identification. As Collins proceeded with

his preliminary investigation, Trooper Robert Routt

arrived to assist. At Collins’ request, defendant got

out of the car. Collins then asked defendant if there

was marijuana in the car, and if so, where it was

located. Initially, defendant said that he did not know.

He then admitted that marijuana was somewhere in

the car but claimed that he did not know where.

Defendant also said, in response to questioning by

Collins, that he did not know how much marijuana

was in the car or whether his passenger, Laude,

possessed any. Collins conducted a pat-down frisk of

defendant’s outer clothing. He did not find any

contraband on defendant. ö

Collins then had Laude get out of the car. When

questioned about the odor of marijuana, Laude

responded that he had some marijuana on him and

that he had just finished smoking a marijuana

cigarette. During their conversation, Collins

observed, in plain view, a plastic bag partially

1. A second assignment of error, involving denial of defendant's motion to

dismiss for lack of a speedy trial, does not require discussion.

22

protruding from Laude’s pocket. It appeared to

contain marijuana.

Following a pat-down frisk of Laude for

weapons, Collins searched the passenger

compartment of the car. He found a scissor-type

clamp that was stained brown and that smelled of

burnt marijuana. In the back seat he found a satchel,

which he took into his possession but did not open.

After finding the satchel, he removed the ignition key

and opened the trunk. There he found a closed brown

paper bag, some suitcases and a metal tool box. The

bag was light in weight. Collins detected the odor of

marijuana coming from it. Opening it, he found a

white, opaque plastic bag inside. A stem was

protruding from a hole in the plastic. Opening the

plastic bag, the officer found a large quantity of

marijuana. He then placed both defendant and his

passenger under arrest.

Because he found the marijuana, the officer

took the still-unopened satchel to the police station.

Six hours later, it was opened pursuant to a warrant.

In it were the amphetamines defendant was convicted

of possessing in this case.

Defendant admits the stop was valid. The

issues defendant presents are whether the warrantless

search of the trunk was valid, whether the search of

the paper bag found in the trunk was valid, and

whether the warrantless seizure of the satchel was

proper. A warrantless automobile search is

appropriate where the search is supported by both

23

probable cause and exigent circumstances. State v.

DeLong, 43 Or App 183, 602 P2d 665 (1979). We turn

first to the issue of probable cause.

Collins had probable cause to justify searching

the trunk. Defendant had admitted that there was

some marijuana in the car. He added, however, that he

did not know the amount or where it was located.

Those statements provided probable cause for Collins

to believe that marijuana might be found anywhere in

the vehicle. Collins’ discov ry of marijuana in Laude’s

possession did not remove probable cause to justify a

search of the rest of the car. Defendant’s statements

that he knew the car contained marijuana and that he

did not know whether Laude possessed any gave rise

to a reasonable inference that defendant was referring

to marijuana other than that found on Laude.’

Exigent circumstances justified proceeding

without a warrant. At the time he opened the trunk,

the officer had found no contraband on defendant and

less than one ounce of marijuana on the passenger.

Possession of that amount of marijuana is a violation

of ORS 475.992 (4)(F), Punishable by a $100 fine but

not by imprisonment. The officer’s practice was to

issue a citation for a violation, rather than take a

person into custody. See ORS 133.045. The officer’s

2. We do not decide here whether discovery of less than one ounce of marijuana in

the passenger section of the car, without admissions of the type made by the

defendant in this case, provide probable cause to search the trunk of a vehicle.

24

options were either to search the entire car or to risk

the possibility that one or both of the occupants

might drive it away while he sought a search warrant.

Defendant would be able to drive away as soon as the

citation process was completed. This is a classic case

of exigent circumstances, justifying a warrantless

search of the automobile. Chamber v. Maroney, 339

US 42, 52, 90 S Ct 1975, 26 L Ed 2d 419 (1970); State

v. Green, 285 Or 337, 340, 591 P2d 1362 (1979); State

v. DeChamplain, 46 Or App 229, 233, 611 P2d 334

(1980); State v. DeLong, supra.

Defendant next challenges the seizure and opening of

the paper bag containing the marijuana. The seizure

was justified by the odor of marijuana. Such a seizure

and subsequent search is analogous to those

permitted by the “plain view” doctrine. See United

States v. Johnston, 497 F2d 397 (9th Cir 1974).

Defendant relies on Robbins v. California,

US : S Ct 69 L Ed 2d

744 (1981). In Robbins, the Supreme Court, while

unable to agree on a single rationale, held that the

warrantless seizure of a closed, opaque container

whose contraband contents are not in some way

readily apparent is unconstitutional. 69 L Ed 2d at

751. See also, United States v. Chadwick, 433 US 1, 97

S Ct 2476, 53 L Ed 2d 538 (1979); Arkansas v.

Sanders, 442 US 753, 99 S Ct 2586, 61 L Ed 2d 235

(1980).

25

—

The court went on to say, however,

If the distinctive configuration of a

container proclaims its contents, the contents

cannot fairly be said to have been removed from a

searching officer’s view. The same would be true, of

course, if the container were transparent, or

otherwise clearly revealed its content

Robbins v. California, supra, 69 L Ed 2d at 751.

(Emphasis supplied.)

As the foregoing quotation shows, Robbins

does not help defendant. Here, unlike in Robbins the

odor from the paper bag revealed its contents as fully

as if it had been made of clear, not opague, material.

The seizure and opening of the bag was proper.

Finally, defendant argues that the seizure and

search of the satchel was unconstitutional. We hold

otherwise. The discovery of contraband elsewhere

furnished probable cause to support the seizure of the

satchel and furnished the basis for later obtaining the

search warrant. However, because its contents were

not readily apparent, the police postponed searching

it until they had obtained a search warrant. This was

precisely what the Constitution permits and requires.

United States vu. Chadwick, supra; Arkansas v.

Sanders, supra; Robbins v. California, supra.

Affirmed.

26

APPENDIX C

Opinion and Order of The Honorable Ted

Abram, dated December 9, 1980:

The initial stop for speeding is a valid stop. The

oficer smelled marijuana upon approaching the

vehicle, and asked the driver, Mr. Nichol. to exit the

vehicle. Under State v. Ferrell, 41 Or. App. 51,

Defendant can be asked to step out of his car and

asked preliminary questions. The defendant was not

in custody and statements made by him at that time

are not suppressed.

Mr. Nichol was asked about the marijuana and

the officer’s testimony at the motion to suppress was

as follows:

“Q. After you had him at the rear of the vehicle

and I guess we should back up - what did you

ask him?

A. Okay, I asked him if there was any marijuana in

the car, and if so, where the marijuana was.

Q. What was his resonse to that?

A. He first stated in substance, that he didn’t

know. I asked him again the same question. He

stated, it is somewhere in the car.

Q. Was this immediately after your first question?

A. Yes.

Q. He stated, ‘it is somewhere in the car?’

A. He stated, ‘it is somewhere in the car.’ I asked

him ‘where in the car?’ and he stated, ‘I don’t

know, it is just in the car.’

27

Q. Did you ask him how much was there?

A. Yes, I asked him about the quantity, and he

shrugged his shoulders and said that he didn't

know.

As stated previously at our last hearing.

marijuana found on Laude is suppressed for the

reason given.

Again, as stated previously, I specifically find

that the officer did not look into the contents of the

satchel as he was searching the interior of the car.

Under State of Oregon vs. DeLong, 31 Or. App.

133, the officer had probable cause to search both the

passenger’s portion of the vehicle and the trunk. Upon

sighting the paper sack, he picked it up and smelled

the odor of marijuana and knew by the feel that the

substance inside was quite-probably marijuana. He

had probable cause to seize and search the paper sack

under State v. Green, 285 Or. App. 337 and Chambers

v. Maroney, 399 US at 44, 90 S Ct. 1975, 26 L Ed 2d

419.

Once probable cause has been established that

the car contained evidence, the issue is whether the

evidence would likely have disappeared. The two

defendants were not charged with any crimes, the

incident took place on a State highway and there

would be nothing to prevent the defendants from

destroying or secreting the contraband.

The next issue was whether the sack of

marijuana is a closed container requiring a search

warrant. From the evidence, I am convinced that the

28

sack was closed and that the officer had a reasor.able

belief that by smell, touch and weight, coupled with

the statement made by defendant Nichol, that the

sack contained marijuana. In Arkansas v. Sanders 61

L Ed 235, the Supreme Court of the United States

stated that not all containers and packages deserve

the full protection of the Fourth amendment. I believe

this to be such a container. From the odor, its weight,

its density, the defendants did not have a reasonable

expectation of privacy because the contents can be

inferred from the officer’s senses.

The motion to suppress is denied.

Sincerely,

s Ted Abram

Circuit Judge

APPENDIX D

Order

of The Honorable Donald A. W. Piper, dated March 5,

1981.

The defendant’s motion to dismiss came before

the Court for hearing March 4, 1981; defendant

appearing by Judith Newman, Deputy District

Attorney for Klamath County; the defendant

appearing in person and by Sam A. McKeen, his

attorney; the Court heard arguments of counsel,

testimony on behalf of the defendant, and thereafter

took the issue under advisement and now has

29

reviewed the entire file and the memoranda of counsel

and being fully advised in the premises, states:

In considering the defendant’s motion to

dismiss on constitutional grounds for alleged

violation of his right to a speedy trial the Court has

balanced the following factors: :

1. Length of the delay,

2. Reasons for the delay,

3. The defendant’s assertion of the ri ght that he

has to a speedy trial, ,

4. Prejudice to the defendant from the delay.

(Concerning balancing, see Haynes us. Burks,

290 Or. 75)

The Court finds that defendant was indicted

within 14 days of the alleged date of the commission

of the offense. He was released on security release

within 20 days of the date of the alleged offense and

has remained at libert; throughout the balance of the

elapsed time. If the trial proceeds as presently

scheduled it should take place within 14 months of the

alleged date of the offense. The post indictment delay

is serious enough to warrant that the Court look into

the other factors. As to the reasons for the delay, the

Court finds no evidence that the State tried to

prejudice the defendant’s right in any respect. The

reasons for the delay were the determination by the

trial court of complicated legal factors which were in a

currently developing body of law during the period of

the delay. The Court weights (sic) this factor against

the defendant. The Court finds that the defendant did

30

not expressly or impliedly assert the right that he has

to an earlier trial date than the one now set. The Court

weights (sic) this factor against the defendant.

Concerning prejudice to the defendant, he has been

caused mental and emotional strain of a serious

charge hanging over his head for a rather long period

of time, however, it does not appear that the

presentation of the defense of this defendant has been

prejudicial in any of the typical ways. The Court

weights (sic) this factor against the defendant.

Accordingly, it is

ORDERED that the motion of defendant to

dismiss be and the same hereby is denied, and that the

case proceed to trial as presently scheduled.

Dated this 5th day of March, 1981.

s / Donald A. W. Piper

Circuit Judge

APPENDIX E

Waiver of Jury

COMES NOW THE undersigned, having been

fully advised of his rights, freely and voluntarily

waives the right to trial by jury in the above.

Dated this 15th day of April, 1980.

/s/ Gerald Nichol

Gerald Nichol, Defendant

31

APPENDIX F

MEMORANDUM BRIEF IN SUPPORT OF

AFFIDAVIT AND MOTION TO SUPPRESS

EVIDENCE FOR VIOLATION OF

CONSTITUTIONAL RIGHTS RELATIVE TO

ILLEGAL SEARCH AND SEIZURE 4th

AMENDMENT RIGHTS, U.S.

CONSTITUTION, 14th AMENDMENTS

RIGHTS, U.S. CONSTITUTION and OREGON

CONSTITUTION SECURING PERSON THE

RIGHT OF PRIVACY IN THEIR PERSONS,

EFFECTS, etc.

Voluminous and not appendixed in its entirety:

“* * and that such search would be illegal

(searches conducted without warrant are per se,

unreasonable. Constitution Article I, Section 9

U.S.C.A. Const. Amend. 4, (Memorandum Brief,

page 5, line 26, through page 6, lines 1 through 3.)

Filed and dated April 11, 1980.

/s/ Hal F. Coe

HAL COE,

Attorney for defendant-Nichols

uoKIsoddg

V.

STATE OF OREGON,

I |

On Petition for a Writ of Certiorari

to the Supreme Court of the State of Oregon

BRIEF FOR RESPONDENT IN OPPOSITION

QUESTIONS PRESENTED

Dees the Fourth Amendment prohibit the seizure

and subsequent opening of a small satchel found in an

automobile which police have probable cause to be-

lieve contains marijuana?

Is an accused’s Sixth Amendment speedy trial right

violated by a fourteen-month post-indictment delay

when the trial court had the accused’s motion to

suppress under advisement for eight months, the ac-

cused failed to assert his right to speedy trial, and has

shown no prejudice?

Supplemental Summary of Facts

— Z

— ON = —

TABLE OF AUTHORITIES

Cases Cited Page

Arkansas v. Sanders, 442 U.S. 752 (1980) 5

Barker v. Wingo, 407 U.S. 514 (1972) 7,10

Miranda v. Arizona, 386 U.S. 436 (1966) 4

New York v. Belton, 453 U.S. 454 (1981) 7

Robbins v. California, 453 U.S. 420 (1981) 5,6

State v. Ivory, 270 Or. 499, 564 P.2d 1039 (1977) . . 8

State v. Meikle, 44 Or. App. 91, 605 P.2d 301 (1980) ............... 9

State v. Nichol, 55 Or. App. 162, 637 P.2d 625 (1981) .......... 1,5,7

United States v. Chadwick, 433 U.S. 1 (1979) . 6

United States v. Ross, — U.S. — (June 1, 1982) 6,7

Constitutional and Statutory Provisions

Or. Rev. Stat. § 2.520 sae 2

Or. Rev. Stat. § 19.190 ... . 2

Or. Rev. Stat. 5 475.992 e ta

S. Ct. R. 20.4 F e ee 1,2

rin . 1

1

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS BELOW

The decision of the Oregon Court of Appeals af-

firming petitioner’s conviction is reported as State v.

Nichol, 55 Or. App. 162, 637 P.2d 625 (1981). The

Oregon Supreme Court’s summary denial of a petition

for discretionary review of the decision of the Oregon

Court of Appeals is reported at 292 Or. 581, 644 P.2d

1130 (1982).

JURISDICTION

Petitioner invokes the jurisdiction of this Court

pursuant to 28 U.S.C. § 1257(3). Respondent chal-

lenges petitioner’s jurisdictional statement in two re-

spects.

First, petitioner prays for a petition for a writ of

certiorari “to the Supreme Court of the State of Ore-

gon.” In so doing, petitioner asks for a writ to the

wrong court; the Oregon Court of Appeals issued the

decision about which he now complains.

Second, the petition appears to be untimely. Peti-

tioner regards March 3, 1982, the date on which the

“final decision” in this case was “issued” by the court

of appeals, as the date from which the time ran for

filing a petition for writ of certiorari (Petition at 3,

20). Petitioner is in error. Rule 20.4 of this Court

states in material part:

“The time for filing a petition for writ of cer-

tiorari runs from the date the judgment or decree

sought to be reviewed is rendered, and not from the

date of the issuance of the mandate (or its equiva-

lent under local practice) * * *.”

Under this rule, the time for filing the petition in this

case ran from February 24, 1982, the date the Oregon

Supreme Court, Oregon’s court of last resort, denied a

petition for discretionary review of the decision of the

court of appeals. !. Or. Rev. Stat. § 19.190(1) provides

in material part:

“* * * The date of the filing of the decision

shall be deemed to be the date of entry of the

judgment, except that the judgment of the Court of

Appeals shall be stayed until the expiration of the

time provided in [Or. Rev. Stat. §] 2.520 for filing a

petition for review in the Supreme Court * * *.”

According to “local practice” and the application of

Rule 20.4, the petition in this case was filed after the

sixty-day period provided for criminal cases under S.

Ct. R. 20.1, and hence the petition is untimely.

SUPPLEMENTAL SUMMARY OF FACTS

On January 19, 1980, at approximately 7:25 p.m.,

Oregon State Trooper John Collins stopped peti-

tioner’s vehicle for exceeding the speed limit. Collins

had clocked petitioner at 75 and 83 miles per hour. (Tr.

13-14, 34)

After parking his car behind petitioner’s vehicle,

the officer approached the vehicle on the driver’s side.

‘Petitioner filed no further request for rehearing in the Oregon courts.

He observed that, in addition to defendant, the car had

another passenger, later identified as Mr. Laude. As

he walked up to petitioner’s vehicle, Collins detected

the odor of burnt marijuana emanating from the open

window. The odor became very strong as the officer got

closer to the car, and requested and received peti-

tioner’s identification. Given the obvious odor of mari-

juana, Collins decided that he ultimately would search

the vehicle for evidence of the drug. (Tr. 14-16).

As Collins began his preliminary investigation, a

back-up patrol car arrived, driven by Trooper Robert

Routt. Collins had petitioner exit the vehicle and then

asked him if there were any marijuana in the car and,

if so, where it was located. Petitioner responded that

the car contained marijuana, but he did not know how

much there was or where it was located. (Tr. 17-21,

48).

Pursuant to police policy, Collins conducted a pat-

down frisk of petitioner’s outer clothing for weapons.

The policy directed that a frisk be conducted before a

full vehicular search, since during the vehicular

search the officer is in a vulnerable position. (Tr. 21,

45).

Collins had the passenger, Laude, exit the car and

step to its front. In response to Collins’ questioning

about the odor of marijuana, Laude said that he had

some of the drug on his person and had just finished

smoking a marijuana cigarette. During their conver-

4

sation, Collins observed in plain view a plastic bag

protruding from Laude’s pocket. It appeared to contain

marijuana. (Tr. 22-24).

Collins next performed a pat-down frisk of Laude’s

outer clothing, pursuant to the aforementioned policy,

and then began to search the vehicle. In the passenger

compartment, Collins found a scissor-type clamp,

stained brown by flame and smelling of marijuana. He

also found a closed leather satchel, which he did not

open but merely placed on top of the car. (Tr. 24-26).

Having completed his search of the passenger com-

partment, Collins extracted the key from the ignition

and opened the trunk. He found suitcases, a tool box,

and a brown paper bag. (Tr. 26).

Lifting the paper bag, Collins found that it was

unusually light in weight for its size. He “sniffed” the

outside of the bag and smelled the distinct odor of

marijuana emanating from it. Opening the bag, the

officer found a white plastic bag with a green stem

protruding from a hole in its side. He opened the

plastic bag and confirmed that it contained marijuana.

(Tr. 27).

Petitioner and Laude were placed under arrest and

advised of their Miranda’ rights. The vehicle, a rental

car which petitioner had parked on the shoulder of the

highway, was towed and impounded. (Tr. 27-28, 32,

71).

"2 Miranda v. Arizona, 386 US. 436 (1966).

At 1:41 a.m., Collins obtained a search warrant for

the satchel and the tool box. He found a scale inside

the tool box and methamphetamines, a controlled sub-

stance, inside the satchel. (Tr. 28, 34). The brown

paper bag contained 14 ounces of marijuana. (Tr. 63).

REASONS FOR DENYING THE WRIT

I. The Seizure Issue

Petitioner does not challenge the validity of the

“stop” of his car, his questioning by the officer, or the

search of the vehicle. His only claim involves the six-

hour seizure of the small satchel preceding its opening

and search pursuant to a warrant. According to peti-

tioner, Trooper Collins lacked probable cause and exi-

gent circumstances to seize the satchel. For a number

of reasons, petitioner’s analysis of the law is er-

roneous.

In justifying the satchel’s seizure, the court of

appeals stated:

“* * * The discovery of contraband elsewhere

furnished probable cause to support the seizure of

the satchel and furnished the basis for later obtain-

ing the search warrant. However, because its con-

tents were not readily apparent, the police post-

poned searching it until they had obtained a search

warrant. This was precisely what the Constitution

permits and requires.” 55 Or. App. at 167, 237 P.2d

at 627.

In support of its position, the court cited three “closed

container” cases decided by this Court: Robbins u.

California, 453 U.S. 420 (1981); Arkansas v. Sanders,

442 U.S. 752 (1980); and United States v. Chadwick,

433 U.S. 1 (1979). Since the Oregon court’s decision in

this case, this Court has overruled Robbins in United

States v. Ross, — U.S. — (June 1, 1982). Trooper

Collins’ seizure of the satchel was proper under the

cases cited by the court of appeals. This Court’s deci-

sion in Hoss merely underscores the propriety of the

police conduct.

In Hoss, this Court held that, when police have

probable cause to search a vehicle, they may conduct a

warrantless search of every part of the vehicle, includ-

the object of the search. Here, Trooper Collins had

probable cause to believe petitioner’s car contained an

unspecified amount of marijuana, a controlled sub-

stance. His probable cause arose from personal obser-

vation as well as petitioner’s admission that the car

concealed some marijuana, although he did not know

where or how much. The satchel, however smail, was a

logical place to look for even a minimal quantity of the

drug.*.

Under Noss, Collins had the authority to open the

satchel immediately. Instead, he followed the holdings

of this Court in Robbins, Sanders, and Chadwick,

seized the unopened satchel, and awaited a search

3 Petitioner's concern over the amo the drug is irrelevant. Posses-

sion of any amount of marijuana is i 228 of an

is See Or. Rev. § 475.992.

7

warrant. In the meantime, Collins discovered a supply

of contraband in the vehicle’s trunk, thereby supply-

ing more probable cause to believe that the satchel

contained contraband. The procedure followed was

precisely what the law at the time required, and it was

more deferential to the petitioner’s alleged privacy

interest in the satchel than Hoss requires.

Moreover, at the time of petitioner’s arrest, the

police were justified in searching the passenger com-

partment of his vehicle and all closed containers inside

it as a search incident to arrest. New York v. Belton,

453 U.S. 454 (1981). Instead of an immediate search of

the satchel, Collins set it aside and obtained a warrant

from a detached magistrate. Thus, petitioner received

more protection than he was entitled to receive under

either Hoss or Belton.

Il. The Speedy Trial Issue

Petitioner’s speedy trial claim, the court of appeals

noted, “does not require discussion.” State v. Nichol,

supra, 55 Or. App. at 164 n. 1, 637 P. ad at 626 n. 1. It is

indeed hard to fathom how petitioner’s right to a

speedy trial was violated in this case by the fourteen-

month post-indictment delay during which the trial

court spent nine months considering the merits of

petitioner’s motion to suppress.

This Court in Barker v. Wingo, 407 U.S. 514 (1972),

established a four-factor test to be considered in

8

assessing an alleged constitutional violation of the

right to speedy trial:*

“* * * length of delay, the reason for the delay,

the defendant’s assertion of his right, and prejudice

to the defendant.” Id. at 530.

Assuming, arguendo, that the post-indictment delay is

of sufficient length to “trigger” further analysis, peti-

tioner’s claim must fail under each of the remaining

factors.

Any assessment of the blame for the delay in this

case must fall on petitioner. The indictment was filed

on January 31, 1980, and the original trial date was

set for April 16, 1980. One week before trial, peti-

tioner filed his motion to suppress. Two days later, he

filed a lengthy supporting memorandum. His motion

and memorandum raised a number of constitutional

questions, including the validity of the search of the

satchel. For obvious reasons, the trial court could not

reach the question of petitioner’s guilt or innocence on

April 26, 1980, since it heard arguments and consid-

ered evidence on petitioner’s motion to suppress on

that date.

Unlike a prosecutor, a court is not an adversary to

a criminal defendant, and the delay by the court is not

necessarily for purposes which are adverse to the

interests of the accused. The judiciary’s responsibility

to safeguard the rights of the parties at times may

*The same test under the Oregon Constitution. State v. lvory,

270 Or. 499, 564 P.2d 1039 (1977).

9

necessarily for purposes which are adverse to the

interests of the accused. The judiciary’s responsibility

to safeguard the rights of the parties at times may

necessarily override the expeditious administration of

justice. Consideration of a court’s attention to this

responsibility must be taken into account when assess-

ing the weight to be given the reason for the delay.

State u. Meikle, 44 Or. App. 91, 605 P.2d 301 (1980).

1980, to December 9, 1980, the court considered the

oral and written arguments of counsel on an array of

constitutional issues raised by petitioner. The parties

and the court understood that the motion to suppress

would be dispositive of the case. On April 16, 1980,

petitioner waived trial by jury and stipulated to the

admission in his bench trial of all evidence adduced at

the suppression hearing. Determination of the con-

stitutional issues was crucial to petitioner’s case, and

it was at his request and for his benefit that the delay

occurred.

Petitioner’s assertion of his speedy trial right also

was untimely. He waited until March 4, 1981 — two

days before he was found guilty in a trial on stipulated

facts — before asserting his right to a speedy trial.

Prior to that date, he made no complaint about the

delay and no demand for prompt adjudication.

Additionally, the record does not support peti-

tioner’s claim of prejudice. Since two other factors are

not in his favor, he is not entitled to a conclusion of

10

“presumptive prejudice” under Barker v. Wingo, sup-

ra. For actual prejudice, petitioner points to his loss of

the trial attorney of his choice, the appointment of

other counsel, the minimal period of two weeks te

prepare for trial, and the allegedly dimmed memories

of witnesses. His argument is not supported by the

facts.

It is evident that petitioner nad the attorney of his

choice during the crucial proceedings of this case.

Specifically, he was represented by that attorney

when his motion to suppress was presented and consid-

ered by the trial court. Since the motion to suppress

was dispositive of the case, what happened thereafter

was of minimal significance. Inadequate time to pre-

pare for “trial” and the dimmed memory of witnesses,

if any, was also insignificant, since the evidence at

“trial” was a stipulation which had been arranged

months before by petitioner’s chosen attorney. In sum,

petitioner suffered no prejudice whatsoever from the

delay in his case.

11

CONCLUSION

For all the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

DAVE FROHNMAYER

Attorney General of Oregon

WILLIAM F. GARY

Solicitor General

*STEPHEN F. PEIFER

Assistant Attorney General

Attorneys for Respondent

*Counsel of Record

vih