# Record and brief — Nichol v. Oregon

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 824

## Text

„*

|} FILED |

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_2098%3A0. Public record. Not legal advice.