# Petition — California v. Wilson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1159%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 944 ## Text COPY No. CLERK bias hel JAN B@ 1904 2 83-1222 ALEXANOER L. STEVAS. a Ae ce IN THE SUPREME COURT OF THE UNITED STATES October Term, 1983 THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, Vv. CLEROW WILSON, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF CALIFORNIA ROBERT H. PHILIBOSIAN District Attorney of Los Angeles County HARRY B. SONDHEIM Head, Appellate Division RODERICK W. LEONARD Deputy District Attorney 849 South Broadway llth Ploor Los Angeles, California 90014-3570 Telephone: (213) 974-5922 Attorney for Petitioner No. IN THE SUPREME COURT OF THE UNITED STATES October Term, 1983 PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, Vv. CLEROW WILSON, Respondent. QUESTION PRESENTED FOR REVIEW Is there a “seizure” within the meaning of the Fourth Amendment when a police officer approaches a traveler at an airport, identifies himself as a police officer, requests a minute of time to talk to that person to which the person agrees, and then explains that he is conducting a narcotics investigation 1 and has information that the person is carrying a lot of drugs. LIST OF PARTIES TO THE PROCEEDING IN THE CALIFORNIA SUPREME COURT 1. Clerow Wilson, represented by Paul Moore, II, was the defendant in the trial court and petitioner before the California Court of Appeal and Supreme Court of the State of California. 2. The Superior Court of Los Angeles represented by the Office of County Counsel, Los Angeles County, was the respondent in the appellate courts below. No appearance was made in the appellate a“ courts below on behalf of respondent Superior Court of Los Angeles County. 3. The People of the State of California, represented by the Office of the Los Angeles County District Attorney, was plaintiff in the trial court and the ceal party in interest in the appellate courts below. TABLE OF CONTENTS QUESTION PRESENTED FOR REVIEW LIST OF PARTIES TO THE PROCEEDING IN THE CALIFORNIA SUPREME COURT OPINIONS BELOW JURISDICTION CONSTITUTIONAL PROVISIONS INVOLVED STATEMENT OF THE CASE Introduction Facts Procedural History REASON FOR GRANTING THE PETITION FOR WRIT OF CERTIORARI WHERE A POLICE OFFICER, ENGAGED IN NARCOTICS SUPPRESSION, APPROACHES AN INDIVIDUAL, IDENTIFIES HIMSELF, ASKS FOR A MINUTE OF THE PERSON'S TIME AND UPON RECEIVING AN AFFIRMATIVE RESPONSE ADVISES THE i INDIVIDUAL HE IS CONDUCTING A NARCOTICS INVESTIGATION AND HAS INFORMATION THE PERSON IS CARRYING A LOT OF ORUGS, THERE IS NO SEIZURE OF THE INDIVIDUAL UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION CONCLUSION 16-26 26-27 Pay TABLE OF AUTHORITIES Cases Pages California v. Steward (1966) 6 364 U.8. 436, 66 S.Ct. 1602, 16 L.Ed.2d 694 Cox Broadcasting Corp. v. 6 Cohn (1975) 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 Dunaway v. New York (1979) ste Ge 442 U.S. 200, 99 S.Ct. 2245, 60 L.Ed.2d 824 | Florida v. Royer (1983) 15, 17, eo eee ee 28, 2, 229, 103 S.Ct. 1319 22 Michigan v. Clifford (Filed 6 January ll, 1984, __ U.S. , 84 Los Angeles Daily Journal, D.A.R. 185 Mills v. Alabama (1966) 384 6 US. 214, 86 8.Ct. 1434, 16 L.Ed.2d 484 Miranda v. Arizona (1966) 6 384 U.S. 436, 16 L.Ed.2d 694, 10 A.L.R. 974 People v. Lilienthal (1978) 5 (1978) 22 Cal.3d 891 iii ui People v. Shuey (1975) 13 Cal.3d 835 vi @ People v. Triggs (1973) 8 Cal.3d 884 Reid v. Georgia (1980) 4432 15, 18, U.S. 438, 65 L.Ed.2d 890, 19 100 S.Ct. 2752 Schneckloth v. Bustamante 23 (1973) 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 Terry v. Ohio (1968) 392 eo ee 3 0.8. i 22, 25 United States v. Mendenhall LSo Ube (1980) 446 U.S. 544, 64 20, 22 L.Ed.2d 497, 100 s.Cce,. 1870 Wilson v. Superior Court 4, 5, (1983) 34 Cal.3d 777, 22 195 Cal.Rptr. 671, 670 P.2d 325 Constitutions United States Conscitution 3 Fourth Amendment vi Fourteenth Amendment vi, vii iv Statutes 28 U.S.C. §1257(3) 5 California Health and Safety Code §11350(a) 13 §11357(a) 13 Rule of the Supreme Court of the United States Rule 20.4 6 Rule 29.1 6 — OPINIONS BELOW The opinion of the Supreme Court of California is reported at 34 Cal.3d 777, 195 Cal.Rptr. 671, 670 P.2d 325. (See Appendix A.) The Opinion of the California Court of Appeal, Second Appellate District, Division 2 was reported in 134 Cal.App.3d 1062. (See Appendix B.) JURISDICTION The opinion of the Supreme Court of California was filed on October 20, 1983. A timely Petition for Rehearing was filed in the Supreme Court of California. The order denying the Petition for hy + Rehearing was filed by the Clerk of the Supreme Court of California on November 23, 1983. (Appendix C.) This Court's jurisdiction is invoked under 28 U.S.C. Section 1257(3).1 1 The decision of the California Supreme Court suppressing all the narcotics in the case at bar which gave rise to all the charges against Mr. Wilson was based exclusively upon an interpretation of the United States Constitution. (Wilson v. Superior Court, supra, 34 Cal.3d at 791.) That decision by California's highest state court precludes further litigation on the federal claim, the finality of which now becomes conclusive. All that remains is dismissal of the case by the trial court since the Petitioner no longer has any relevant evidence to proceed with the prosecution. Once the evidence is suppressed dismissal follows and Petitioner is precluded from further appellate review based on both (1) law of the case (People v. Shuey (1975) 13 Cal.3d 835, 841) and (2) stare decisis. (People v. Triggs (1973) & Cal.3d 884, 890-891 overuled on other grounds in People v. Lilienthal (1978) 22 Cal.3d 891, © 896].) This Court recognizes that effective finality of judgment by a a) ~~ eas — The instant Petition for Writ of Certiorari is filed within 60 days of the order of the Supreme Court of California denying rehearing. (Rules of the Supreme Court of the United States, Rule 20.4; Rule 29.1.) state high court bestows jurisdiction upon this Court. (Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 479-481; 95 S.Ct 1029, 1038-1039; 43 L.Ed.2d 328 on remand 214 S.E.2d 530, 234 Ga. 67; Miranda v. Arizona (1966) 384 U.S. 436, 498, n. 71; 86 S.Ct. 1602, 1640, n. 71; 16 L.Ed.2d 694, 10 A.L.R. 974, rehearing denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Bd.2d 121; California v. Steward (1966) (decided with Miranda v. Arizona, supra) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Mills v. Alabama(1966) 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484.) It appears that this Court has recently granted jurisdiction in a case procedurally comparable to the case at bar. (Michigan v. Clifford, et al. (Filed January 11, 1984, ___ U.S. _. 84 Los Angeles Daily Journal D.A.R. 183.) Thus, this Court can properly accept jurisdiction in the case at bar. 0 CONSTITUTIONAL PROVISIONS bs INVOLVED United States Constitution @ Amendment IV provides that: "The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue 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." United States Constitution Amendment .XIV, Section 1 provides that: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge the privileges or , immunities of citizens of the @ United States; nor shall any State deprive any person of vi life, liberty or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the laws." Vii STATEMENT OF THE CASE Introduction This case concerns an ) airport search whereby a police officer, acting upon information which did not provide probable cause for detention, approached Clerow Wilson at the Los Angeles International Airport and asked if he “might have a minute of his time." Upon receiving an affirmative response, the officer advised Mr. Wilson that he had received information that Mr. Wilson would be arriving from Florida carrying a lot of drugs, and asked consent to search Mr. Wilson's luggage. Consent was given and narcotics were recovered from Mr. Wilson's attache case. © 7 Facts On March 10, 1981 Officer Roy Kaiser of the Los Angeles Police Department was assigned to an undercover narcotics operation at the Los Angeles International Airport. (Reporter's Transcript [hereinafter "RT"} 115.) Officer Kaiser had worked exclusively narcotics Suppression at the Los Angeles International Airport for the past four and a half years. (RT 167.) He testified to extensive training and experience. (RT 115.) Officer Kaiser was on that date generally monitoring the inbound flights from Florida which, based upon his experience, he recognized served as a conduit to channel illegal drugs into 8 ‘Z California. (RT 119-120.) Officer Kaiser had prior information that Mr. Wilson might be arriving from Florida on that date (RT 120) but he had not expected to observe Mr. Wilson deplane from the particular Pan American Miami-Los Angeles flight which arrived at approximately 11:30 Or 11:45 a.m. (RT 116-117, 119-120, 127-128.) When Mr. Wilson deplaned he was recognized by Officer Kaiser. (RT 128.) Wilson was carrying an attache case and was accompanied by an associate who was carrying a box which contained the name "Flip Wilson". (RT 119, 130.) Officer Kaiser observed Mr. Wilson and the associate look around inside the arrival area. The associate made eye fe) contact with the officer. (RT 120-121.) Officer Kaiser testified that this eye contact of looking around after deplaning from the Flight was consistent with that of persons he had arrested in the past for transporting narcotics. (RT 121.) Officer Kaiser followed the two as they walked normally through the concourse (RT 138-139) and observed Mr. Wilson's associate look back over his shoulder in the direction of the officer and then immediately turn back and appear to speak to Wilson who turned his head to look back in the direction of the officer. (RT 122.) Mr. Wilson and the associate were met at the end of the concourse by a woman who was subsequently 10 determined to be Mr. Wilson's wife. (RT 122, 140.) The associate handed Mr. Wilson the box which was placed in a car parked by the curb and while the associate walked to the baggage Claim area the other two remained by the car. (RT 122-123.) Officer Kaiser then approached Mr. Wilson who was then standing by the rear of the open trunk, displayed his police identification, told him he was a police officer, and asked if he might have a minute of his time. Mr. Wilson's response was "Sure", “What seems to be the problem?" (RT 124, 150.) Officer Kaiser told Wilson that he was conducting a narcotics investigation and that he had information that Wilson would be 11 — arriving on that date from Florida and would be carrying a lot of drugs. (RT 124, 150.) The trial court excluded information received by Officer Kaiser from his partner, Detective Frederick, that Mr. Wilson was coming from Florida transporting a large amount of drugs. (RT 146-147, 176-177.) Officer Kaiser did testify, however, that he had not received other information that Mr. Wilson was engaged in illegal activity. (RT 1238.) Officer Kaiser asked Mr. Wilson if he could search his luggage. Wilson responded "Sure". "I don't have any drugs that I know of. Go ahead and search.” (RT 124-125.) Mr. Wilson placed the attache case on the rear seat of the 12 vehicle and opened it for the officer (RT 125, 153) who searched the case and retrieved small amounts of hashish (RT 126) and cocaine. (RT L277.) Procedural History Clerow Wilson was arrested and charged with possession of illegal narcotics in violation of California Health and Safety Code sections 11350(a) and 11357(a). The defense made a motion in the trial court to suppress the evidence. The motion was denied based upen the trial court's opinion that no illegal detention had occurred. (RT 251.) The defense then filed a Petition for Writ of Mandate in the Court of Appeal of the State of @ 13 SS ee Tos. - California, Second Appellate District, Division One. On August 20, 1982 that Court in a split two-one decision, certified for publication (Appendix B; 134 Cal.App.3d 1062), held that the police conduct was lawful under authority of both the United States Constitution and the Constitution of California. The defense then petitioned for a hearing in the Supreme Court of California which, on October 30, 1983, in a unanimous opinion (Appendix A; 34 Cal.3d 777), overruled the decision of the courts below, and held that the narcotics were seized in violation of the Fourth Amendment of the United States 14 Constitution. The Supreme Court of California's opinion, which was based | entirely upon its interpretation of © the Fourth Amendment of the United States Constitution, as applied to the states (34 Cal.3d at 791), held that Police Officer Kaiser had illegally detained Mr. Wilson and therefore ordered the narcotics which had been recovered to be suppressed. (Id.) The Supreme Court of California based its decision upon its interpretation of this Court's opinions in Reid v. Georgia (1980) 448 U.S. 438, 65 L.Ed.2d 890, 100 S.Ct. 2752; United States v. Mendenhall (1980) 446 U.S. 544, 64 L.Ed.2d 497, 100 S.Ct. 1870; and Florida v. Royer (1983) ___ U.S. __, eo 15 75 L.Ed.2d 229, 103 S.Ct. 1319. (See @ Wilson v. Superior Court, supra at 34 REASON FOR GRANTING THE PETITION FOR WRIT OF CERTIORARI WHERE A POLICE OFFICER, ENGAGED IN NARCOTICS SUPPRESSION, APPROACHES AN INDIVIDUAL, IDENTIFIES HIMSELF, ASKS FOR A MINUTE OF THE PERSON'S TIME AND UPON RECEIVING AN AFFIRMATIVE RESPONSE ADVISES THE INDIVIDUAL HE IS CONDUCTING A NARCOTICS INVESTIGATION AND HAS INFORMATION THE PERSON IS CARRYING A LOT OF DRUGS, THERE IS NO SEIZURE OF THE INDIVIDUAL UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION. This Court has consistently upheld the right of police to approach and address questions to 16 i individuals in a public place. (Dunaway v. New York (1979) 442 U.S. 200, 210, note 12; Terry v. Ohio (1968) 392 U.S. 1, 31, 32-33, 34; United States v. Mendenhall, supra at 555.) The lead opinion by this Court in United States v. Mendenhall recognized that no illegal “seizure” occurs even where an individual at an airport is asked by a law enforcement officer for an airline ticket and identification. In Florida v. Royer, supra, where police approached the defendant at an airport, identified tnemselves, asked for a moment of time to speak with him, took his ticket end identification, and asked him to 17 ee , accompany them to a police room without returning the ticket and driver's license, it was recognized that “had Royer consented to a search on the spot, the search could have been conducted with Royer present in the area where the bags were retrieved by Officer Johnson and any evidence recovered would have been admissible against him.” (Id., 75 L.Ed.2d at 241.) Reid v. Georgia, supra, did not reach the issue of whether the contact and questioning of a citizen at an airport was a seizure within the meaning of the Fourth Amendment. In Reid the petitioner had deplaned and a DEA agent approached, identified himself as a ~ 18 federal narcotics agent, and asked to see airline ticket stubs and identification. The agent appeared to obtain consent for the search of the petitioner and his bags. However, on the way to the DEA office petitioner dropped his bags and ran from the officers. This Court held that the introduction of the evidence of the cocaine seized from the bag violated petitioner's Fourth Amendment rights. The California Supreme Court recognized in its Opinion in the instant case, Wilson v. Superior Court, Supra, that “Reid does not provide an answer to the detention issue. Although the holding that the circumstances known to the officer before he approached 19 the two suspects did not rise to the level of a ‘articulable suspicion', the Reid court did not directly address the issue of whether the officers’ conduct amounted to a ‘detention’ of the suspect or, if it did, at what point did the detention begin ...." (Id., 34 Cal.3d at 787.) In the encounter in the case at bar, Officer Kaiser did not ask for nor obtain tickets nor identification. Officer Kaiser asked for a minute of Mr. Wilson's time. He identified himself. This was permissible. (Florida v. Royer, supra, 75 L.Ed.2d at 236; United States v. Mendenhall, supra, 446 U.S. 544, 555, 64 L.Ed.2d 497, 100 S.Ct 1870.) Mr. Wilson was not 20 detained, not even momentarily. He was advised of the narcotics investigation and information respecting his carrying a lot of drugs. Mr. Wilson consented to search for narcotics. It is submitted that there was no detention. "If there is no detention - no seizure within the meaning of the Fourth Amendment - then no constitutional rights have been infringed." (Florida v. Royer, Supra, 75 L.Ed.2d at 236.) No detention occurred in the case at bar. It was stated by the California Supreme Court that "... Detective Kaiser did not detain Wilson, for federal constitutional “> at 1324, 1326). This Court has held that a police officer can properly seek consent to search and need not inform the individual of a right to refuse that consent (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 231; 93 S.Ct. 2041, 2049-2050, 36 L.Ed.2d 854). In light of these authorities, it is submitted that a police officer can identify himself as a narcotics officer and ask for consent to search an individual who has agreed to a temporary encounter with the police officer, even though the Clear implication of the request for consent is that the officer is searching for narcotics. The California Supreme Court, however, concluded that where the police 2% officer expressly stated that he sought consent to search because he had information that the person whose consent he sought had narcotics, the encounter became a seizure within the meaning of the Fourth Amendment.2 We submit this is a distinction without a difference and that the Constitution does not prohibit a police officer from expressly stating that which is implied by the fact 2 ". . . Once the officer advised Wilson that he had informacion that Wilson was carrying a lot of drugs, the entire complexion of the encounter changed and Wilson could not help but understand that at that point he was the focus of the officer's particularized suspicion. Under these circumstances - and particularly in the absence of any clarifying advice from the officer explaining to Wilson that he was, in fact, free to drive away if he desired - no reasonable person would have believed that he was free to leave." (34 Cad.3d at 791.) 24 oe. ; PRS tens? YD Ah. oes © ee oP ees that he is a narcotics officer seeking consent to search. A distinction must be drawn between an encounter and a seizure. This Court has consisten.ily stated that “only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred” (Terry v. Ohio, supra, 392 U.S. at 19, note 16; see also id. at 34 (White J. concurring); id., at 3l, 32-33 (Harlan J. concurring). It is submitted that when a narcotics officer identifies himself as such and requests consent to search no “show of authority” occurs which restrains an individual so as to eS conclude that a seizure, rather than an encounter, has occurred. No physical force or show of authority occurred in the case at bar so as to restrain petitioner when Officer Kaiser identified himself as a police officer and informed petitioner of the reason for the encounter. It is submitted that the encounter in the case at bar is not a seizure and therefore the evidence obtained incident thereto is admissible. CONCLUSION For the reasons set forth in this Petition Petitioner respectfully requests that a Writ of 26 184 Co nah Pav J ey a a en Ps RN NN dt a BA Las ie we lta be byt | he ore pa owe alt a ta ae Sync ame Naka ee A a OL CM a ie AAS In analyzing the federal constitutional issue, Justice White's lead opinion in Royer provides a logical starting point.® In that opinion, Justice White reviewed the 6 In Royer, four judges -Justices White, Marshall, Powell and Stevens - joined in Justice White's lead Opinion, which reversed Royer's conviction on the ground that his consent to search his luggage had been obtained as the result of an illegal seizure which exceeded the bounds of a permissible detention. Justice Brennan filed a separate opinion, concurring in the result but disagreeing with some of the reasoning of the lead opinion. The four other judges dissented, with Justice Rehnquist writing a dissenting opinion joined by Chief Justice Burger and Justice O'Connor, and Justice Blackjmun writing his own separate dissent. Although the judges were widely split on the of federal constituti y pies to the facts of » & close readi of the ver nions suggests the court is in general agreement as to the overall Pourth Amendment framework ised in Justice White's opinion, general Fourth Amendment framework that governs the kind of warrantless, investigatory activities that are frequently undertaken by law enforcement officers in an airport setting. ( --- U.S. at p. --- [75 L.Ed.2d at pp. 233-239, 103 S.Ct. at pp. 1323-1326].) (2) For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police "contacts" or “interactions” with individuals, ranging from the least to the most intrusive. First, there are what Justice White termed "consensual encounters” (id. --- U.S. at p. --- (75 L.Bd.2d at p. 243, 103 &.Ct. at p. 1329)), which are those police-individual interactions which result in no restraint of an 204 individual's liberty whatsoever - i.e., no “seizure,” however minimal - and which may properly be initiated by police officers even if they lack any “objective justification.” (Id. --- U.S. at p. --- (75 L.Ed.2d at p. 236, 103 S.Ct. at p. 1324]).) Second, there are what are commonly termed “detention,” seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police "if there is an articulable suspicion that a person has committed or is about to commit a crime." (Ibid.) Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an 21A individual's liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime. (Id. = U.S. at Pp. —— {75 L.Ed.2d at p. 237, 103 S.Ct. at p. 1325).) In this case, Wilson makes no claim that at the time he consented to the search of his attache case he was subjected to restraints which exceeded the {34 Cal.3d 785] permissible bounds of a detention. (1b) Thus, the principal question before us is simply whether the police conduct which preceded Wilson's consent involved only a “consensual encounter” which the police could undertake without objective justification, or whether it amounted to a "detention" which would be permissible only if the police had an objective, articulable basis for suspecting Wilson of criminal conduct. In this regard, Wilson contend that the record establishes, as a matter of law, that (1) the prosecution failed to prove the requisite “objective articulable suspicion” to justify a detention, and (2) he was, in fact, “detained.” We turn first to the “articulable suspicion" issue. B. As we have seen, at the suppression hearing Detective Kaiser described in considerable detail his observations of Wilson and Rashon which preceded his direct contact 23 A ba, A with Wilson. Of the facts related by Kaiser, the only two circumstances that might even plausibly be proffered as a basis of an "articulable suspicion” are (1) Rashon's “eye contact” with Kaiser upon first entering the arrival area of the terminal, and (2) the act that both Rashon and Wilson looked back in Kaiser's general direction as they walked down the concourse toward the airport terminal exit. Wilson contends that these circumstances, singly or in combination, do not rise to the level of an “objective, articulable suspicion” so as to justify even a limited detention under Fourth Amendment principles. The United States Supreme Court's decision in Reid v. Georgia, 24A Supra, while arising out of different facts, directly supports Wilson's claim. In Reid, an undercover narcotics agent at the Atlanta airport observed the defendant as he acrived on an early morning flight form Fort Lauderdale. As the passengers left the plane and walked down the airport concourse single file, the agent saw the defendant occasionally look back at a second passenger who was separated from him by several other passengers. When the passengers reached the main lobby of the terminal, the second man caught up with the defendant, the two talked briefly, and they then left the terminal together. The agent approached the two men outside the building, 254A | wt all a ae a ye | Peet ek Ye Bee 2 hae € identified himself as a narcotics agent and asked to see their airline stubs and identification. The men complied with the request. The tickets revealed that they had both been bought with defendant's credit card and that the two men had been in Fort Lauderdale for only one day. At this point, the men appeared nervous and the agent asked if they would agree to return to the terminal and consent to a search of their persons and their bags. The agent testified that the two agreed, but as they ‘ | returned inside the building, the defendant ran, dis- | | ¥ (34 Cal.3d 786) ; ’ carding his bag. He was quickly 4 : ih apprehended and the bag turned out to _ ¥ contain cocaine. 264. On these facts, the Georgia © Court of Appeal, relying on the agent's testimony that the defendant appeared to fit the airport's “drug courier profile” in a number of respects, held that the officer had "reasonable suspicion" to approach and detain the two men outside the terminal building. Specifically, the Georgia court found it relevant that "(1) the (defendant) had arrived from Fort Lauderdale, which the agent testified is the principal place of Origin of cocaine sold elsewhere in the country, (2) the [defendant] arcived in the early morning, when law enforcement activity is r diminished, (3) he and his companion ‘ appeared to the agent to be trying to conceal the fact that they were * 274A traveling together, and (4) they apparently had no luggage other than their shoulder bags." (448 U.S. at p. 441 [65 L.Ed.2d at p. 894].) In Reid, the United States Supreme Court reversed the Georgia decision, concluding “that the agent could not, as matter of law, have reasonably suspected the [defendant] of criminal activity on the basis of these observed circumstances.” (Ibid.) The court reasoned: “Of the evidence relied on, only the fact that the [defendant] preceded another person and occasionally looked backward at him as they proceeded ie through the concourse relates to , theic particular conduct. The other circumstances described a very large is category or presumably innocent : travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure. Nor can we agree, on this record, that the manner in which the [defendant] and his companion walked through the airport reasonably could have led the agent to suspect them of wrongdoing. Although there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot [citation], this is not such a case. The agent's belief that the (defendant) and his companion were attempting to conceal the fact that they were traveling together, a belief that was more an ‘inchoate and , unparticularized suspicion or "“hunch"' [citation], than a fair inference in the light of his experience, is simply too slender a reed to support the seizure in this case.” (Ibid.) This reasoning applies equally to the present case. Indeed, the facts before us appear, if anything, even less supicious than those in Reid. Aside from the brief "eye contact” with Rashon - a reed at least as “slender” as the agent's suspicion in Reid - the officer did not identify any circumstance which would provide a reasonable basis for Gistinguishing Wilson from the great bulk of pessengurs arriving at the Les Angeles International Airport. a matter of law that the police did not have an objective, articulable basis to justify a detention of Wilson. Ac- {34 Cal.3d 787) cordingly, the determinative issue is whether at the time of his consent Wilson was “detained” for Fourth Amendment purpose or whether he was simply engaged in a consensual encounter,” Cc. Reid does not provide an answer to the detention issue. Although holding that the circumstances known to the officer before he approached the two suspects did not rise to the level of "articulable suspicion,” the Reid court did not directly address the ca issue of whether the officer's conduct amounted to a "detention" of the suspects or, if it did, at what point the detention had begun: because the lower courts had concluded that there was reasonable suspicion to justify a detention, they had not found it necessary to decide whether or not the defendant had been detained; the Supreme Court ~- while reversing on the reasonable suspicion point - did not reach the detention question, leaving the initial resolution of that matter to the state courts on remand. (See Reid, supra, 448 U.S. at p. 443 [65 L.Ed.2d at p. 895] (conc. opn. of Powell, J.).)7 Similarly, in Un (1980) 4 , 100 S.Ct. 1870) - While Reid thus does not assist us in distinguishing "consensual encounters” from "detentions," the Supreme Court's recent decision in Royer does afford airport search case decided just two weeks before Reid - the detention issue had not been litigated in the lower courts, apparently because the prosecution had never contended that the officer's conduct fell short of a detention. Therefore, seven judges of the Supreme Court resolved the case on the assumption that a detention had occurred. Of the seven, three - Justices Powell, Blackmun and the Chief Justice -found that there was sufficient articulable suspicion to justify a detention, and four - Justices White, Brennan, Marshall and Stevens - found that there was not. The two remaining judges - Justice Stewart and Rehnquist - concluded that the detention issue was not foreclosed despite the prosecution's failure to pursue it, and ~ without deciding the reasonable suspicion question - resolved the case in favor of the prosecution on the ground that no Getention had occurred. As a ronht; the conviction in Mendenhall was affirmed by a five-to-four margin. 33 A a try Pt 8 a Loo lap hater: ol OOS uit : par a Ye Oe considerable guidance on this point. In Royer, two undercover narcotic agents working at the Miami airport testified that they first took note of Royer because they believed that his “appearance, mannerisms, luggage and actions fit the so-called ‘drug courier profile.'" (--- U.S. at p. --- (75 L.Ed.2d at p. 233, 103 S.Ct. at p. 1322).) As they observed him, Royer purchased a one-way ticket to New York and checked his two suitcases, placing on each an identification tag with the name "Holt." As he walked along the concourse toward the airline boarding area, the two officers approached him, identified themselves as policemen working out of the sheriff's office, and asked him if he 34a | had a “moment” to speak with them. He said, "Yes." At the officers’ request, Royer produced his airline ticket and driver's license: the ticket - like the baggage identification tags - was made out in [34 Cal.3d 788) the name "Holt," while the driver's license carried his correct name, "Royer." When the officer asked about discrepancy, Royer stated that friend had made the reservation in the name “Holt.” During this conversation, Royer became noticeably more nervous, and the officers then informed him “that they were in fact narcotics investigators and they had ‘a reason to suspect him of transporting é narcotics.” (Ibid.) At that point 4g ty a ~ 4 a x > . « ~~ - , , R re “Oy; oe ee ? =~. the officers, who still had Royer's aicline ticket and identification, asked him to accompany them to a room adjacent to the concourse, about 40 feet away. Without saying anything, Royer walked with the officer to the small room - described as a “large storage closet” - which contained a desk and two chairs. Without seeking Royer's consent, one of the officers retrieved the luggage which Royer had checked and brought it to the room. Royer then was asked if he would consent to a search of the suitcases. In response, Royer produced a key and unlocked one suitcase; an officer opened it and found a substantial quantity of marijuana. Royer then consented to the search of the second bag, in which, too, marijuana was 7 found. The entire episode - from the time the officers first approached Royer to their discovery of the contraband - took about 15 minutes. Before trial, Royer moved to suppress the evidence on Fourth Amendment grounds, the motion was denied and he was convicted of felony marijuana possession. On appeal, the Florida Court of Appeal reversed the conviction, holding (1) that the police did not even have sufficient information to constitute the articulable suspicion required to justify a limited detention and (2) that, in any event, the police e conduct which preceded the consent 4 exceeded the limited restraint permitted in a detention contest. 37A —_——. —_” - a that the lead opinion's views as to : b> the on consensual encounters . aN a clearly enjoy majority support within ‘ e A * ¢ + oh * a ~~ 4 - A 40A .. ~ - . ve i she - 3 ; 1 aa “he =k + : , : : - * =) n “— : o —. aS vas re a cs asking him if he is willing to answer @ some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answer to such questions. [Citations.}] Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective " justification. {[Citation.] The \, person approached, however, need not a answer any question put to him; indeed, he may decline to listen to : the questions at all and may go on -* his way. ([Citations.) He may not be ) fF detained even momentarily without reasonable, objective grounds for Bs as doing so; and his refusal to listen e Sane Or answer does not, without more, furnish those grounds. [Citation.] if there is no detention - no seizure within the meaning of the Fourth Amendment - then no constitutional rights have been infringed." (--- U.S. at p. --- (75 L.Ed.2d at p. 236, 103 S.Ct. at p. 1324].) Though this passage gives some indication of the attributes of a consensual encounter, it does not in itself set forth a clear constitutional standard for distinguishing such an encounter from a detention. That additional guidance is provided in a subsequent passage, where the ‘lead opinion, in rejecting the state's contention that the “entire encounter was consensual,” states: “Asking for and 42 A 4 ‘y rm 4 examining Royer's ticket were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver's license and without indicating in any way that he was free to depart, Royer was effectively seized for the purpose of the Fourth Amendment. These circumstances surely amount to a show of official authority such that ‘a reasonable person would have believed that he fr ° ave.’ [34 Cal.3d 790) United States v. Mendenhall, 446 U.S. 544, 554 (Opinion of Stewart, J.)." (Italics added.) (--- U.S. at p. --- [75 L.Ed.2d at p. 239, 103 S.Ct. at p. 1326].) (3) In light of the emphasized language and the citation of Mendenhall, it is now clear that a substantial majority - and perhaps all - of the Supreme Court justices agree with the standard set forth by Justice Stewart in his separate a opinion in that case: "“[A] person a has been ‘seized’ within the meaning 4 of the Fourth Amendment only if, in : view of all the circumstances surrounding the incident, a sesechabhe person would have believed he * that he was not free to leave.*10 10 ~ Six menbers of the present court a es either pespeces or youn? = a nions expl t endorsing # ogo fe Fl Justices white, Fs . and Stevens signed “4 (United States v. Mendenhall, supra, > 446 U.S. at p. 554 [64 L.Ed.2d at p. 509].) (lc) Thus, the question before us is whether, at the time Wilson consented to the search of his attache case, a reasonable person in Wilson's position would have believed the lead opinion in Royer; Justice Blackmun expressly approved that standard in his dissent in Royer (--- U.S. at p. --- (75 L.Ed.2d at p. 246, 103 S.Ct. at p. 1332]); and Justice Rehnquist joined in the relevant portion of Justice Stewart's opinion in Mendenhall itself. Of the three remaining justices, Chief Justice Burger joined Justice Powell's concurring opinion in Reid, which - at the least - strongly hinted at its approval of the Mendenhall test (448 U.S. at p. 443 (65 L.Edi2d at p. 895])), and Justice Brennan appears to have applied the mepdenna standard in his discussion o etention issue in his concurring opinion in ee (--- U.S. at p. --- [75 24 at p. 245, 103 &.Ct. at _ 1331).) ly Justice O*Connor, who was not on court when and were decided, has her views on the issue. 45a = ‘ toh Tee ee ’ . \ a . pa tll te pie lll ga) e : om ‘ i ae eae that he was not free to leave. Reviewing the facts of this case in light of this standard and the relevant portions of Royer, it is evident that Detective Kaiser did not detain Wilson, for federal constitutional purposes, merely by approaching him, identifying himself as a police officer, and asking if he might have a minute of his time. At that point, however, the officer did not simply ask Wilson if he would permit a search of his luggage. Instead, he advised Wilson that he was conducting a narcotics investigation and that he “had received information that he [Wilson] would be arriving today from Florida carrying a lot of drugs.” (Italics added.) Common sense suggest to us that in such a situation, an ordinary citizen, confronted by a narcotics agent who has just told him that he has information that the citizen is carrying a lot of drugs, would not feel at liberty simply to walk away fron the officer. Before Kaiser made that statement, Wilson might well have thought that the officer was simply pursuing routine, general investigatory activities, and might reasonably have felt free to explain to the officer that he had an important appointment to keep and did not have the time - or, perhaps, the inclination - to answer the officer's ques- {34 Cal.3d 791) tions or to comply with his request 47A a Le Bin Oe J Pm 4 1 Se ‘Yate Sallis ns ees We! ee ey i ae ee ate ¢ ‘ot for permission to search. Once the officer advised Wilson that he had information that Wilson was carrying a lot of drugs, the entire complexion of the encounter changed and Wilson could not help but understand that at that point he was the focus of the officer's particularized suspicion. Under these circumstances - and particularly in the absence of any clarifying advice from the officer explaining to Wilson that he was, in fact, free to drive away if he desired - no reasonable person would have believed that he was free to leave. (See United States v. Berry (Sth Cir. 1982) 670 F.2d 583, 597; United States v. Robinson (Sth Cir. 48 A LL an LT TS CPR ee MS te Comma ae 1980) 625 F.2d 1211, 1216-1217.) 11 1l One commentator - in a thoughtful article on the general "seizure" question - has made this same point: “The nature of the questions asked by the officer during an encounter also may be relevant to the seizure issue. As questioning moves from general questioning concerning facts unrelated to a particular crime or class of crimes to questions indicating the officer's interest in a specific crime or class of crimes, the perception of the citizen reasonably may change from one of a voluntary encounter, from which he is free to disengage, to one of a formal police investigation of specific criminal activity, which he is not free to ignore. ... In the absence of actual physical restraints or unequivocal verbal commands, a reasonable person examining the conduct of the officer is more likely to view the circumstances as a seizure when the conduct or verbal activities of the police become more intrusive, that is, when they clearly are related to the investigation of specific criminal acts. It is the threat of arrest and prosecution that produced the ee ion of cestricted liberty in a itizen encounter, Nast perception is more likely to arise when conduct the police is linked to the "wR Arh +. Accordingly, we conclude that Wilson was detained, within the meaning of the Fourth Amendment, when he consented to the search of his attache case. Of course, if - as Detective Kaiser represented - the police did in fact have additional information indicating that Wilson would be transporting narcotics, that information might well have provided a reasonable basis for the detention, in which case Wilson's consent would have been validly obtained. As we have explained, however, the prosecution - despite fair warning - failed to present the relevant testimony to substantiate the alleged information. On this record, we can > only conclude that the police detained W'lson in violation of the Fourth Amendment, and that the trial court erred in failing to suppress the evidence obtained as a result of that illegal detention,}2 12 Although the People have not expressly conceded the point, they have not argued that the evidence should not be suppressed even if Wilson was illegally detained, on the theory that the evidence was not the "product" of the illegal detention. Since Wilson's consent followed within minutes of the detention, and since there were no intervening circumstances whatsoever, — a claim would, in any event, untenable. (See 8 aia or wed ts’ in at p. 9, 1 §.Ct. - p. 1326); n ve f (i999) 462 0.8. SOO 216- L.Bd.24 624, 838-839, 99 s.Ct. 2248); v. . (i975) 422, Ube eB0, 6OTSeOS Tas ) L.84.24 416, 425-426, 95 8.Ct. of . S1A — 0 iain : : a ~~ a | : aah 7 “ “7 [34 Cal.3d 792) Let a peremptory writ of mandate issue, directing the trial court to vacate its order denying the motion to suppress and to enter a new order granting the motion. Bird, C. J., Mosk, J., Richardson, J., Broussard, J., Reynoso, J., and Grodin, J., concurred. EXHIBIT B bi a ak) ee [Civ. No. 64102. Second Dist., Div. One. July 23, 1982. CLEROW fog Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. OPINION HANSON (Taxton), J.-- Tntroduction Petitioner/defendant Clerow Wilson aka Flip Wilson (hereinafter defendant and/or Wilson) seeks a peremptory writ mandating respondent court to vacite its ruling denying his motion pursuant to Penal Code section 1538.5 (hereinafter section 1538.5) to exclude as evidence contraband (hashish oil and cocaine) found in his attache case at the Los — Angeles International Airport after he deplaned from a flight from Miami, Florida. The deterainative issue of this case i is whether or not defendant Wilson was improperly initially subjected to a "detention" at the airport in violation of his "Fourth Amendment" rights as referred to in the federal Constitution and the parallel provision in California's : Constitution guaranteeing against unreason- : able "seizures." . Superimposed on the determinative issue, and of no little significance, is a. our duty to determine the effect on this : -case, if any, of the passage on June 8, ° : 1982, of Proposition 8 entitled "Criminal ; Justice--Initiative Statutes and Consti- 3 tutional Amendment" now enacted in article 4 I, section 28, of the California Constitu- tion commonly referred to as the "Victims' Bill of Rights," (hereinafter Proposition 8) and specifically section 28, subdivi- sion (d), of the initiative entitled S white Vie a eA o: Te me te & f , LS ay od phd ae pe het +) +é > 2 o™] Truth-in-Evidence provision). Proposition 8 became effective on June 9, 1982, while the instant case was pending before this court. | Procedural History Qn April 30,_1981, defendant Wilson was charged in a two-count information with possession of cocaine in violation of Health and Safety Code section 11350, a felony (count I) and possession of hashish 011 (concentrated cannabis) in violation of Health and Safety Code section 11357, subdivision (a), a felony (count II). On May 13, 1981, the defendant pled not guilty and made a motion pursuant to section 1538.5 to exclude as evidence the narcotics found in his possession. Qn October 16, 29 and 30, 1961, defendant's motion to suppress the evidence was heard and denied. Qn November 30, 1961, defendant «$9 hoe a ee filed with this court a "Petition For Writ of Prohibition (Stay) and Writ of Mandate" seeking to have the superior court's rul- ing on this motion annulled and vacated. Qn January 22, 1962, this court summarily denied the petition (per Lillie, Acting P. J., and Hanson, J.; with Dalsimer, J., voting to grant the petition). Qn February 1, 1982, defendant Wilson filed a "Petition in the Alternative for - Writ of Mandate and/or Writ of Prohibition" with the California State Supreme Court essentially containing the same supporting documentation previously supplied this Court of Appeal. Qn February 18, 1962, the state Supreme Court made the following order: "Petition for hearing GRANTED. The matter is transferred to this court and retransferred to the Court of Appeal, Second District, Division One, with. directions to issue an alternative writ to be heard. before that court when the pro- ceeding is ordered on calendar. (See People v. Bower, 24 Cal.3d 638, 643, and In re Tony C., 21 Cal.3d 888, 895-896. )" Qn March 26, 1962, this court in compliance with the above order issued an "Alternative Writ of Mandate," and the matter was heard on May 25, 1962, and submitted. , On June 8, 1982, before our decision was rendered, the California electorate passed Proposition 8 containing the "Right to Truth-in-Evidence" provision (§ 28(d)) which became effective on June 9, 1982. Qm July 1, 1962, after first vacating the May 25, 1962, submission order and receiving and considering supplementary written briefs from counsel limited to the issue of the effect, if any, of the passage of Proposition 8 upon issues ‘relevant to this case, this court heard — additional oral argument’ and resubmitted the matter. Amicus curiae briefs were invited, received and considered from the offices of both the state Attorney General s and the State Public Defender, and representatives from those offices were granted permission, and did, orally argue their respective positions at the hearing. Facts (1) We view the evidence in the light most favorable to the order denying suppression as required by the familiar rule governing appellate review. (People v. Leyba (1981) 29 Cal.3d 591 [174 Cal. Rptr. 867, 629 P.2d 961).) Defendant Wilson's motion to suppress evidence was ‘hotly contested during a three-day hearing in the superior court. . _ 2 (Hon. Edward A. Hinz, judge presiding. ) At the hearing, Officer Roy (Roi) Kaiser of the Police Department of the | «.) ee ~ et eee ~ . y er City of Los Angeles assigned to the narcotics division testified that he had been a narcotics officer for about ten years engaged exclusively in major drug peddling suppression within the City of Los Angeles, and that for approximately four and one-half years he had been specifically assigned to the Los Angeles International Airport Narcotics Bureau. Officer Kaiser stated that he had partici- pated in excess of a thousand narcotics | investigations and made hundreds: of arrests of persons involved in violation of the state and federal narcotics laws; that he had lectured extensively across the United States at various drug enforcement agency seminars; and that he had testified as an expert in both state and federal courts across the United States. Officer Kaiser testified that on March 10, 1961, at approximately 11:30 or 11:45 a.m., while at the Satellite area of Pan American Airlines at the Los Angeles International Airport and dressed in cas- ual street attire, he observed defendant Wilson deplaning carrying an attache case. The defendant was accompanied by another black male person (established as defend- ant's nephew Rashon Wilson) who was carry- ing a box that had the name "Flip Wilson" written on it. Officer Kaiser, whose duty was to monitor in a general fashion in-bound Florida flights on a daily basis, did not expect defendant Wilson to get 3 off on that particular airplane but had prior information that he (Wilson) might be arriving on a flight from Florida on \ that date. ig /// Officer Kaiser monitored the movement of the defendant and Rashon Wilson and "observed the two of them to be looking e about inside the arrival area," and that on at least two specific occasions Rashon Wilson made eye contact with him (Officer Kaiser) in the arrival area. Officer Kaiser testified that in the past such behavior, eye contact and looking about after deplaning these flights, was engaged in by other persons he had arrest- ed for transporting narcotics. (On cross- examination the officer testified that the specific type of eye contact he had with 4 Rashon Wilson was similar to the eye contact he had with others who were drug carriers.) Officer Kaiser walked behind the defendant and his companion down the : ‘ escalator into the concourse to the : terminal building. About midway in the \ concourse, the officer observed Rashon Wilson look to his rear in the officer's general direction, then immediately turn and appear to speak to defendant Wilson who also looked back in the officer's general direction. Officer Kaiser followed the two to the end of the conclurse where they met defendant's wife, Mrs. Wilson. The three then walked out onto the sidewalk in front ~— of the terminal building where Rashon Wilson handed the defendant the box Rashon Wilson was carrying. Defendant then went to the curb and placed the attache case he was carrying and the box handed to him in the rear passenger section of a vehicle parked at the curb. He and Mrs. Wilson entered the vehicle. _ Officer Kaiser observed Rashon Wilson converse with the occupants inside the vehicle and then go to the baggage room of Pan American es “Officer Kaiser followed Rashon Wilson to the baggage ~ room and saw him get two pieces of luggage off the rack, exit the baggage room and walk in the direction of the vehicle at the curb. At the same time Officer Kaiser saw his partner, Officer Gary Frederick of the Los Angeles Sheriff's Department, approach Rashon Wilson and have a conversation with him. Officer Kaiser did not enter into this conversa- tion. The three then walked back to the vehicle parked at the curb. ‘When Officer Kaiser arrived back at the vehicle, he observed defendant Wilson standing at the rear of the vehicle by the open trunk. Officer Kaiser told the defendant he was a police officer and produced police identification. The officer then asked defendant Wilson if he "might have e minute of his time” to which the defendant replied, "Sure." The officer then advised the defendant that he was conducting a narcotics investigation and that information had been received that he (defendant Wilson) would be arriving from Florida carrying a lot of drugs and asked if he (Officer Kaiser) could search the luggage at the curb and the box inside the vehicle. Defendant Wilson said "Sure. I don't have any drugs that I know of. Go ahead and search." As Officer Kaiser was about to remove the box from inside the rear passenger section of thé vehicle, he again noticed the attache case and asked defendant Wilson if he could also search the attache case. Defendant Wilson replied: "There should only be some papers in there. But you can go ahead and look if you like." oo Defendant Wilson placed the attache : case on the rear seat of the vehicle and opened it himself in the officer's view. Officer Kaiser searched the attache case and found a glass vial of oi] in a pocket in the lid of the case containing a "dark tarry-type substance" which appeared to be hashish oil. Upon observing this, defendant Wilson said "That's just a little bit of hash oil in there." Officer Kaiser then asked the defendant if "he would mind accompanying {him} back to [his] narcotics office situated there at the airport" and defend- ant stated "he would." The defendant | asked if they could all go in his car and the officer agreed. The defendant drove his car to the airport narcotics office accompanied by his two companions and the two narcotics officers. At the office a continued search of the attaché case disclosed an eyeglass case containing a glass vial resembling cocaine.* (Footnote continued on next page. ) 5 ~~ (Footnote continued from previous page.) 1. The reporter's transcript of the hear on defendant's motion to suppress as evidence the hashish oil and cocaine found in the defendant's attaché case contained the following colloquy on direct examination of Officer Kaiser by the » prosecut attorney, Mr. Jenkins: "Q. (Mr. Jenkins) What happened next? "A. Upon arriving at the vehicle, the defendant Mr. Wilson was standing at the rear of the vehicle by an open trunk of the vehicle. "Q. What happened next? "A. I approached Mr. Wilson, and I displayed police identification to hin. I told him I was a police officer; and I ran him if I might have a minute of his e. "Q. What did he say? "A. He stated ‘Sure.’ "Q. What happened next? "A. At this e, I advised Mr. Wilson that I was conduct a narcotics red evens eames and that we had received today Aten Pistide Garryiie 8 100 of true rom Flor carry a lot o Ss. And : asked Mr. Wilson if he-- "MR. MOORE: Objection to the use of the term 'we.' Move to strike. "THE COURT: Well, that part may be stricken. .. . "Q. BY MR. JENKINS: What hapyened after you advised Mr. Wilson that you had information he was carrying a large | quantity of drugs? r "A. I asked Mr. Wilson if I could search his 1 that was there at the curb, and also the box that I had obs him place inside the vehicle. (Continued (Continued from previous page. ) "Q.. What did he answer? "A. He stated, 'Sure.' And he said, 'I don't have any drugs that I know of. . Go ahead and search'. e "Q. What happened next? % "A. At this time, I walked with Mr. . Wilson to the--around the vehicle. Mr. Wilson went to the one side of the vehicle; and I went to the other. And, as he was about to remove the box from inside the rear passenger section of the vehicle, I noted — the attache case and at this point, sked Mr. Wilson if I could also search the attache case. "Q. And did he answer that question? "A. Yes,. he did. "Q. What did he say? "A. He stated, 'There should only be rs ers in there. But you can go ahead and et if you'd like.' "Q. ened next? "A ee thie e, he placed the attache case on the rear seat of the : vehicle. He opened the attachd case, Yt ioe what was in there, in my view. conducted a search of the attaché case. "Q. Tell us what you did. "A. I withdraw [sic] from the lid portion, a pocket area of the attaché case, a glass vial; and upon holding it nyo. Did Me. Wile ° ° on say at that time? ngchy ge "A. Yes, he did. "Q. What did he say? "A. He stated, ‘That's just a little bit of hash oil in there.' "Q. Did you investigate that oo = further? To be con i j " . ay . ‘ ee eR ae ee ey AT tut (Continued) "A. I did. "Q. What did you do? oving the Tid cap.” £ looked at rem e cap. a . substance inside, which appeared to be a dark -type substance. I also smelled at the substance, and in inion it appeared to be that of hash oil. "Q. What happened at that point? "A. At this point, I asked Mr. Wilson if he would mind soocnpesy ane me back to my narcotics office situated there at the airport; and he stated he would. "Q. t happened at that point? "A. At this point, I asked Mr. Wilson if he would mind oro s me back to my narcotics office situa there at the airport; and he stated he would. "Q. : t ened next? "A. At this Mr. Wilson asked me if it would be all right if we would take his car and ride over there together in his car, so he could get it off the street. "Q. Did you agree to that? "A. I did. "Q. And wh t in the car? "A. I got into the rear portion of the vehicle; my er also got into the rear portion of the vehicle. Mr. Wilson was driving. The woman was also in the front passenger section of the vehicle. And the other individual, the other male person, was in the back seat, as I recall, with partner. "a, And did you go over to the nar- cotics office? 9a; ase hoes t there, did Me! en you (To be continued. ) ne: : —_ On cross-examination by defense counsel, Officer Kaiser stated that the first time he spoke to the defendant he had a slight suspicion that the defendant was possibly involved in criminal conduct; that his purp»%se in speaking to the defendant was to request permission to search his luggage; that he did not advise the defendant that he did not have to . consent to the search; and that at the time he first approached the defendant he and Rashon Wilson were in close proximity. (Footnote continued from previous page.) continue york snarel of the attache case? A. . "Q. Did you find anything else? i "A. Yes, I did. » “"Q. What else did you find? "A. I discovered inside an eyeglass case that was inside the attache case. The eyeglass case contained a glass vial. Inside the glass vial appeared to be a white powdery substance, which, in my opinion, resembled that of cocaine. "Q. Did retain both of those items, the hash oil and the apparent co- caine? "A. I did." 17B Mrs. Wilson was in the right front seat and Rashon Wilson was on the sidewalk. Officer Kaiser denied that before looking in the attache case he told the defendant that he was not interested in a small amount of contraband for personal use as he was only looking for a larger quantity. Following the direct and cross- examination of Officer Kaiser and argument 2 in respect to a detention, the issue was submitted to the court for a ruling and the trial court denied the motion. 2. Ofticer kaiser testified that after he found the vial with hashish oil the defendant was not free to go and was technically under arrest; al » that was not commmicated to him. Defendant was told he was under arrest when the other contraband (cocaine) was found while in big airport office. sett ot te ‘ reporter's transcr ° hearing on the motion to suppress the evidence shows that at this point of the roceedings the court, after Officer ser testified but before defendant Wilson took the stand, stated: "The motion to dismiss--and to suppress the evidence is denied at this (Continued) 185 . pe . 4 . aa ie = } Sy eee So Onee | ~ . Subsequent to the above ruling by the court, defendant Wilson took the witness stand and testified in his own behalf.” (Footnote continued. ) point. "The court is of the view that there is sufficient evidence before the court at this time that indicates that the officer approached the defendant and asked if he could speak--was not physically detaining him; and, based on the testimony I have heard, the defendant was more than will to discuss the matter with hin. « a consent search was obtained. "So, the motion by defense counsel at this point is denied. "MR. MOORE [Defense Counsel]: Your Honor, with respect--may I t inquire conce the standard that I argued to the court? The ose-— | "THE COURT: e court finds that the ¢ conduct of the officer is consistent with | the r ements of the law as laid down probably most recently by the California Supreme Court in the Tony C. case, which F I'm thoroughly familiar with. "MR. M : Thank you." “fi 4. Defendant Wilson on direct P examination by his counsel testified substantially as follows: That on March 10, 1981, he arrived on a flight from Miami; that he walked down the concourse with his nephew, Rashon Wilson, and encountered his wife who met them at the front of the airport; that Rashon Wilson was carry a large box which contained (Continued 19B (Footnote continued. ) a Milifiori lamp which defendant had purchased in an antique shop in Florida; that Rashon Wilson was also carrying a Virginia ham and defendant's attache case; that he gave the claim checks to Rashon Wilson, went to the car, placed the box in the car, put the ham in the trunk, and put the attaché case into the car; that he then saw Officer Kaiser at the right front door of the car and heard Rashon Wilson say that the officer had a search warrant to search his bags; that Officer Kaiser then said he had a search warrant to search the bags and told him that he (Officer Kaiser) had received a call from @ young black man saying that defendant Wilson would be arri and would be carrying a large tity of narcotics; that he (def Wilson) replied that that was absurd, he was a professional entertainer and not a narcotics dealer and told Officer Kaiser that he was pressed for time and had to rush home because he had an gages to meet Mayor Bradley; that he then instructed Rashon Wilson to cooperate with the police; that the police then proceeded to search his black piece of 1 e which was on the at the rear right door of the car; t then Officer Kaiser leaned back in and asked if he could search the attache case and he (defendant Wilson) said that he would . ug @e Neither Mrs. Wilson nor Rashon Wilson, who were present and apparently had knowledge as to what transpired, were (Footnote continued from previous pag -) arrests; that defendant responded t since the officer put it in those terms, he could search. . Defendant Wilson further stated that he personally leaned over the back seat, opened the attache case and raised the lid, picked up the bottle of hashish and showed. the officer the cocaine; that Officer Kaiser then said he had to place him under arrest; and that. they all went over to the police station where the officer’ searched the box. Defendant further testified that he gave the officers ermission to search the attache case ecause they had stated they were not concerned whether he was carrying something that was only for his own personal use but — neon about a aoe anon gga eard he was carry a e quantity. Defendant testified t a never asked to see the search warrant nor did the officer represent that he had a search warrant for the attache case. On cross-examination by the eae tl Called as witnesses by the defense. Following additional argument by counsel, the court again ruled that Officer Kaiser's conduct did not constitute a detention and T denied defendant's motion to suppress under section 1538.5.° . 5. whe reporter's transcript con- tains the following statement by the trial court; "THE COURT: All right. [] Thank you. fe) The court being advised in the matter, having heard the testimony of the witnesses, having had the benefit of the moving papers, and having heard the argu- ment of counsel, of course, the testimony which extended over two days--a week ago last Friday and yesterday-~the court being advised in our matter, orders that the motion er Penal Code section 1538.5 be denied. |%) The court is of the view that, one, s was not a detention; that it the information--conduct of the officer was sufficient to omece ed the approach of a citizen on the street and a to talk to him with the subs ti that Geveneped. {@] Now, it may that the Arges view of the law in ) a i t \ es 8 ot) AAP i el ae we iin. BD ee 9 (2) (See fn. 6.) me determinative issue is not whether Officer Kaiser suspected defendant Wilson of criminal activity, but whether defendant Wilson j subjected to a detention in the first ; instance at his vehicle in front of the Los Angeles International Airport which j vidlated his constitutional guarantees __ | against unreasonable "seizures" within the meaning of the Fourth Amendment to the : United States Constitution and its parallel provisions in article I, section 13, of the California Constitution as construed by federal and state decisional law.© 5 6. The issue as to whether or not defendant Wilson voluntarily consented to the search of his attache case where the cocaine and hashish oil were found as encompassed in the issues raised at the defendant's motion to ss before the trial court. The record cates that Tosteonl trial epatr favored the credibility of 238 - ‘. a eee (Footnote continued from ae page.) the testimony of Officer ser over that of defendant Wilson even though the de- fendant testified that he personally opened his own attache case with reserva- tions. (See fn. 4, oJ The law is well settled on the role of a reviewing court in respect to ruling on a voluntariness of consent issue. "The question of the voluntariness of the consent is to be determined in the first instance the trier of fact; and in that stage of the process, determined in the first instance by the trier of fact; and _in that stage of the process, i 'The power to judge credibility of wit- nesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that gag and the trial court's findings ~-whether express or implied--must be _ upheld if rted by substantial a Pe . eit) COB CPR SEY a : - 617, 530 P.2d 585}; accord 1976) 1 690, 701 1:Rp 3 one Pe2d 353] )" (Peo- . . 5 19 . 98 "07 also ; (1980) 112 -App. 3d 106s 1815 (Teg tei Rper. 742). There is ample evidence in the instant case to support the trial court's | finding as to the voluntariness of ee defendant Wilson's consent to s his 4 attache case. In event the voluntari- P ness of defendant Wilson's consent to search his attache case has not been raised or pressed in proceedings before this court. 248 However, the passage of Proposition 8 by the California electorate on June 8, | 1982, which became effective on Jume 9, * 1982, while the case at bench was still | pending decision, has presented the important issue of the impact and effect, | ’ : if any, of Proposition 8 upon the resolu- tion of the detention issue. Defendant's counsel in his supple- : mentary brief, augmented by the State Public Defender in his amici brief and at oral argument, contends (1) that ‘Broposi~ tion 8 is unconstitutional in its entirety because it (a) was voted on within less than 131 days of its qualification for the R. ballot and was not passed at a "general election" as required by the California Constitution, (b) violates "the Single- om subject Rule," and (c) is a constitutional E revision and not merely an amendment to - the California State Constitution thereby ae —, © eee &- tn ‘em requiring a constitutional convention; (2) that in the event Proposition 8 is held to be constitutional, section 28, subdivision (a), the Truth-in-Evidence provision can only be applied prospectively in this case, and that if the Truth-in-Evidence provision were to be applied retroactively there would be a denial of equal protection and due process of laws and a violation of the proscription against ex post facto laws. The district attorney's office and the state Attorney General's office in briefs and at oral argument assert that Proposition 8 is constitutional; that the Truth-in-Evidence provision applies retroactively; that defendant Wilson is not denied equal protection or due process of law; and that the proscription against ex post facto laws is inapplicable.. Be ab /// 26B I Background The state Supreme Court in retrans- ferring the instant case back to this court to issue an alternative writ, to conduct a hearing and write an opinion, directed our attention to the California Supreme Court cases of People v. Bower (1979) 24 Cal.34 638 [156 Cal.Rptr: 856, 597 P.2d 115] and In re Tony C. (1978) 21 Cal.34 888 [148 Cal.Rptr. 366, 562 P. 2d 957], which involve the exclusion of relevant evidence. The Truth-in-Evidence provision of Proposition 8 provides, with certain exceptions, that "Relevant Evidence Shall Not Be Excluded in eny Criminal Proceed- ing." We are.compelled to address the cemstitutional issues of Proposition 8 | and the retroactivity issue of the Truth- in-Evidence provisions raised by the defendant before considering whether Bower and In re Tony C. are controlling. This is so because those cases, as well as section 1538.5! pursuant to which defendant Wilson made his motion to sup- press in the superior court, contain California case and code law which sanc- tions the exclusion of relevant evidence in criminal proceedings thereby colliding with the plein language of the Truth-in- Evidence provision of Proposition 8. 7. Section 1538.5, subdivision ta (1), and subdivision ( (a} rovides: "(a A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing ody ge oat a result of a search. or sated} of the following wens: search or seizure It ; A. Wi ° on 8c tu eligible for the June primary ballot? Yes. (3) The defendant first asserts that Proposition 8 was not constitutionally eligible to be placed on the June primary ballot because it violated article II, section 8, subdivision (c) of the Califor- nia Constitution® in that the election was “8. ornia Cons on, cle II, section 8, subdivision (c) provides: "The Secre of State shall submit the [initiative] measure at the next general election held at least 131 days rit qualified at any special statewide election heid prior to a general election. The governor may call a special statewide oth for the measure." (Italics a ° tion: "I, Bdmund G. Brown, Jr., of the State of California, to Section 2553 of the Elections » hereby proclain t the Statewide day of June, 1962, at ¥ ; ve (Footnote continued from previous e.) such election. Also, the following © measures proposed by the Legislature, bose igh rant with four initiative measures pores cil progr © measures will be e ied voters of th State on that ae . “PRrorosiTion | THE NEW PRISON BOND ACT OF 198! - CHAPTER 273, STATUTES OF 1981. - “Prorasirian 2 PRESIDENT OF SENATE. LEGISLATIVE CONSTITUTIONAL AMENDMENT. “Proranirion 3 TAXATION. REAL PROPERTY VALUATION.. CHANGE IN OWNERSHIP. LEGISLATIVE CONSTITUTIONAL AMENDMENT. “PROPOSITION 4 BAIL. LEGISLATIVE CONSTITUTIONAL AMENDMENT. ; **Prorasrrion $ GIFT AND INHERITANCE TAXES (PROPONENT ' MILLER). INITIATIVE STATUTE. PROPOSITION 6 GIFT AND INHERITANCE TAXES (PROPONENT ; ROGERS). INITIATIVE STATUTE. ' “ProraniTion 7 INCOME TAX. INDEXING. INITIATIVE STATUTE. “PROPOSITION & Cananal JusTice . initiative STATUTES ° AND CONSTITUTIONAL AMENDMENT, (Italics ; adueu.) : > a “PROPOSITION 9 WATER PACILITIES INCLUDING A PERIPHERAL CANAL. REFERENOUM STATUTE. “ProrosiTion 10 R&APPORTIONMENT. CONGRESSIONAL . DISTRICTS. REFERENDUM STATUTE. “ProrosiTiOn 11 REAPPORTIONMENT. SENATE DISTRICTS. REFERENDUM STATUTE . “PROPOSITION 12 RBAPPORTIONMENT. ASSEMBLY DISTRICTS. REFERENDUM STATUTE. Es. "IN WITNESS WHEREOF, I have hereunto set State ba Onditoeida tte cee a ix day of March, 1982. tts "/s/ EDMUND G. = "/s/ G. BROWN, JR "ATTEST: "/s/ MARCH FONG EU "Secretary of State “by /s/ MARJORIE R. HERSEERGER” 30B not held "at least 131 days after it qualifies," denying the opponents the required time in which to campaign against the initiative which was not voted on at a "general election." The contention is without merit. On January 22, 1982, in a writ proceeding, Paul Gann et al. v. March Fong Eu, case No. 301007, in the Superior Court in and for the County of Sacramento (Honorable Horace Cecceltini, judge, presiding) Proposition 8 was ordered qualified for the June 8 ballot as of January 22, 1982, 135 days prior to the election. However, the defendant argues that Proposition 8 was not "cleared"? for the 9. The State Public Defender's Office in its amici brief used the word ied" rather than "cleared." The word "cleared" does not in Califor- nia Constitution, article rr, on a ard subdivision (c). (See fn. 8, ante.) 318 ballot until the state Supreme Court decided Brosnahan v. Bu (1982) 31 Cal.3d 1 [181 Cal. Rptr. 100, 641 P.2d 200], on March 11, 1962, citing the dissenting opinion of Chief Justice Bird [at p. 15, fn. 1] which stated that "the constitutionality of submitting an initiative to the voters at a June pri- mary election would appear to be an open question." We cannot ignore the history of the efforts of the proponents of Proposition 8 to place the initiative on the June 8 primary ballot as summarized by "THE COURT” opinion in Brosnahan (set out haec verba in fn. 10 below).2° ‘the Brosnahan ~~ dO. Following 18 the majority opinion in 1 Cal.3d 1: TRE COURT ey re 2 - ce petitioners seek to prevent re = Bh aca of tusse ten from insti- a ig 9 to placing on the balkot at at the June primary er an initiative measure relating to 'Criminal Justice’ and entitled (in 7 1 thereof) 'The Victims' Bill of Petitioners assert that re failed to comply ee sta sions number of signatures to measure for the ballot, and t the (Footnote continued from previous page.) eb measure is unconstitutional ecause it contains more than one subject (Cal.Const., art. II, § 8, subd. (d)) and amounts to a ‘revision’ of the Constitu- ‘tion rather than an 'amendment' thereto (see id. art. XVIII, §§ 1-3). . e proponents of the initiative measure duly presented to the appropriate blic officials petitions containing 3,409 signatures. The number of valid signatures neces to qualify the measure for the ot under article II, at section 8, subdivision (b), of the ie Constitution is 555,790. Upon examination Ee. of the certificates submitted by County at officials on the basis of the random sampling provided for in the Elections . Code, respondent determined that the petitions contained 108.76 percent of the number of signatures required for a place on the ballot. Respondent refused to take steps to submit the measure to the voters on the ground that the number of valid signatures disclosed by the sample fell short of the 110 percent then red by section 3520, subdivision (g). tead, she ordered local election officials to verify each signature. "The ag pment an of the measure, real parties in interest in the present pro- * ceeding, sought a writ of mandate before : the Superior Court of Sacramento County ; to compel respondent to certify the i initiative as having qualified for the ballot, and to take the steps required by + aac gree tae positied anae, although en position ’ she was prohibited by law from certifying the petitions because random sampling (Continued) 338 ™ Se i &ah™ Silty en ng (Footnote continued from previous page.) indicated fewer than 110 percent valid signatures, she was nevertheless of the opinion that the 108.76 percent valid signatures found on the petitions constituted substantial compliance with og the requirement of the Elections Code to qualify the measure for the ballot without the need for verification of each signa- ture. Following entry of a judgment, stipulated by the ies, to the effect that real parties had substantially complied with the requirements of the Elections Code so as to qualify the initiative for the ballot, a writ of man- . date was issued by the trial court direct- ing respondent to certify the initiative for the June 8, 1982, Primary Election, and to take other steps required by law to place the eaauare peters the voters in that election. "Thereafter, petitioners, who are electors in various counties of the Famats filed with us an original petition for writ of mandate and prohibition to prevent respondent from certifying the initiative and to restrain her from performing any act in aid of submission of the measure to the voters. Because of the importance / of the questions presented and the time constraints involved, we issued an alterna- tive writ of mandate and expedited briefing V. California State ALF Re Seas 1 577, 523 P. 2d. 7} and cases cited. We also issued a stay prohibiting joo 0 et of the trial court's writ of mandate proceeding disposition of the present Vecektan ae : 5 ees se er i i; ~ : Vv ie Cs ee es (Footnote continued from previous page.) "While this case aad was pending, the Legislature pass and the Governor signed, an argenay measure (Stats. 1982, one 102) providing that if, on or before January 28, 1982, the Secretary of State received from the several county clerks certificates, based on a random sampling technique, establishing that the number of valid signatures affixed to an initia- tive petition is more than 105 percent of the number of qualified voters needed, the petition shall be deemed to have qualified for the ballot. The Secretary of State received such certificates on or before January 28, 1982. "We conclude that the initiative measure shall be placed on the ballot of the June 1982 pr election. "We do not reach the other issues raised by petitioners. As we have fre- quently observed, it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by prevent the exercise of the people's franchise, the absence of some clear showing of invalidity. (E.g., BSS to cabvipee. oa, ee 64 Cal.2d i. 13 P.2da 825 cai ai Foe. ese) 3 P24 6h 643]; gay ¥5 ofan E87 972) 25 cal res 3d 2 $357 "The gh ny 9 mae of the judgment in Sacramento Superior Court, No. 301007, is vacated, and the peremptory writs of mandate and prohibition are denied. The judgment is final forthwith." ee _- — BS a eres A a by ay Ps 35B ides es ET om: me wits 2 oy fae ORS OPE Ae ET Pe eee court concluded "[tJhat the initiative | measure shall be placed on the ballot of | | June 1982 primary election." The Brosnahan | court also vacated its earlier stay of the ® : judgment in superior court case No. 301007 which was followed by the certification of the initiative proposition for election by the Secretary of State. We hold that Proposition 8 was con- stitutionally eligible tees placed on - the June 8 primary ballot. The initiative was "qualified" when so ordered by the superior court on January 22, 1982, well in excess of the 13l-day requirement. The fact that the state Supreme Court first granted a stay of enforcement of case No. 31007 and then vacated it on less than the 13l-day period does not negate qualification. To hold otherwise would permit the opponents of any initiative to | literally throw a monkey wrench into an 36B initiative's qualification machinery by merely filing a lawsuit and making only a colorable showing for a stay order. Such a result would be not only unreasonable but ridiculous. Even if the June 8, 1982, election is not construed to be a "general election," it was a "statewide special election" for purposes of all 12 initiatives then on the statewide ballot. (See fn. 8, ante.) | Any other reading of article II, section | 8, subdivision (c), would invalidate not only Proposition 8 but also all the other initiatives passed by the voters in this and other earlier June statewide primary elections. It also would require re- submission of all 12 propositions on the June 1982 ballot plus resubmission of . countless propositions on the primary ba ballot in previous years. Such an absurd | result would be unconscionable and unacceptable. "The right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter." (McFadden v. Jordan (1948) 32 CAl.2d 330, 332 [196 P.2d 787]; Perry v. Jordan (1949) 34 Cal.2d 87, 90, 91 (207 P.2d 47].) Finally, the state Legislature passed an urgency measure (see fn. 8, ante) that Proposition 8 be deemed to be "qualified" for the June ballot provided on or before January 28, 1982, the Secretary of State received county clerk certificates, based on random samplings, establishing that the number of valid signatures affixed to the initiative petition was more than 105 percent of the number of qualified voters needed. Such certificates were received by the Secretary of State on or before January 28, 1982. 38B 2S B. Is - idat th 0. (4) Defendant next argues that Proposition 8 in its entirety is uncon- stitutional on its face because it vio- lates the "single-subject" rule in California Constitution, article II, sec- tion 8, subdivision (a).22 Defendant's reliance on Amador Valley Joint Union High Sch. Dist. v. State Bd. of Boualiza- tion (1978) 22 Cal.3d 208 [149 Cal.Rptr. 239, 583 P.2d 1281], and Brosnahan v. Bu, supra, 31 Cal.3d 1, in support of this argument is misplaced. We construe the language and holding in Amador Valley to be supportive of the constitutionality of Proposition 8 in that the court there applied the "reasonably 11. California Constitution, article II, section 8, subdivision (4d) (added Nov.8, 1966) provides: "An inia- tive measure embrac more than one sub- ) ject may not be submitted to the electors . or have any effect." 39B germane" test in rejecting a challenge to the constitutionality of Proposition 13 (the Jarvis-Gann tax initiative) on the grounds that Proposition 13 violated the single-subject rule. The Brasnahan case is inapplicable since the majority of the court declined to address the single- subject issue prior to Proposition 8 being placed on the ballot. The dissent- ing opinion of Chief Justice Bird and the concurring and dissenting opinion of Justice Mosk, which concluded that Proposi- tion 8 did violate the single-subject rule by employing the "functionally related" test, is not a binding precedent. (31 Cal. 3d at pp. 1l, 17.) (See discussion, infra.) ~We hold that the single-subject rule does not render Proposition 8 unconstitu- tional as a whole because it satisfies the requirements favoring the constitution- ality of both legislation and initiatives under the "reasonably germane" test as discussed by the state Supreme Court in landmark cases dating back 50 years. The case of Evans v. Superior Court (1932) 215 Cal. 58 [8 P.2d 467], interpret- ed the single-subject rule in relation to the legislative act establishing the Probate Code. The code was upheld as not embracing nore than one subject. The act contained approximately 1,700 - sections which dealt with such matters as the custody, disposal by will, success- ion, administration, and distribution of adecedents' estates and the custody and administratiun of estates of persons under guardianship. The single-subject requirement for initiative measures was added to the California Constitution as article II, section 8, subdivision (d), in November 1966. (See fn. 11, ante.) ee * boy: ex at), i Ro, A visions, having one general object, if In Perry v. Jorden, supra, 34 Cal.2d 87, the issue before the court was an initiative constitutional amendment which sought to repeal an article of the California Constitution relating generally to "aid to needy, aged and blind." The opponents of the initiative argued that the measure had four different purposes and Claimed it had in all 18 incidental pur- poses. (34 Cal.2d at p. 93.) The Perry court construed the single- subject provision adopted in 1948 (see fn. 11, ante) as upholding the validity of the proposed constitutional amendment. The court utilized the principles set forth in the case law interpreting the single- subject rule for legislation and quoted at length from Evans v. Superior Court, supra, 215 Cal. 58, pages 62-63, as follows (34 Cal.2d at pp. 92-93): "Numerous pro- fairly indicated in the title, may be - united in one act. Provisions governing projects so related and interdependerit as to constitute a single scheme may be properly included within a single act. (Barber v. Galloway, 195 Cal. 1, 3 [231 P. 34].) The Legislature may insert in a ; single act all legislation germane to the general subject as expressed in its title and within the.field of legislation suggested thereby, (Treat v. Los Angeles Gas Corp., 82 Cal.App. 610 [256 P. 447].) Provisions which are logically germane to the title of the act and are included within its scope may be united. The general purpose “of a statute being declar- ed, the details provided for its accom- plishment will be regarded as necessary incidents. (Estate of Wellings, 192 Cal. - 506, 519 [221 P. 628];. Buelke v. Levenstadt, 190 Cal. 684, 687 [214 P. 42]; 435 $ . » et Ae ee - tne e j Vay F =, _ r ws a ee ar eee TS Bers ee, ¥4 ee ees ae , Pe ge Whi Pon, te eet 3 te 7 os SEA ae eee Bete ee Ee Rae eer ee, See Bee eS and cases cited.) The language of this court in Robinson v. Kerrigan, 151 Cal. 40, 51... ., is especially applicable to ; this case at this point. A provision which conduces to the act, or which is auxiliary to and promotive of its main purpose, or has a necessary and natural connection with such purpose is germane within the rule. ...'" The Perry court further noted (again quoting from Evans) at page 92 that; "' . « « the [single-subject] provision is not to receive a narrow or technical construction in all cases, but is to be construed liberally to uphold proper legislation, all parts of which are reasonably germane. (Heron v. Riley, 209 Cal. 507, 510 [289 P. 160].) ‘The : provision was not enacted to provide - means for the overthrow of legitimate | legislation. (McClure v. Riley, 198 Cal. 44B 23, 26 [234 P. 429].). . .'" (Italics added.) _ In Amador Valley Joint Union High School Dist. v. State Board of Equalize- tion, supra, 22 Cal.3d 208 (Bird, C. J. concurring and dissenting by reason of violation of the equal protection clause) the state Supreme Court, applying the reasonably germane test, held that Proposition 13, (the Jarvis-Gann tax initiative which added article XIII A to the state Constitution imposing real property assessment and tax rate limita- tions and restrictions on state and local taxes) satisfied the single-subject rule. The Amador Valley court quoting from Evans stated at pages 229, 230: "'[TJhe [single-subject] provision is not to receive a narrow or technical construction in all cases, but is to be construed liberally to uphold proper legislation, 45B oc aS eee all_parts of which are reasonably germane. (Citation. ][%] Numerous provisions, having one general object, if fairly indicated in the title may be united in one act. Provisions governing projects so related and interdependent as to constitute a Single scheme may be properly included within a single act. [Citation.]'" (22 Cal.3d 208, 229-230.) (Italics in original.) In Amador Valley the court referring to Perry stated at page 230: "We thus draw from Perry its primary lesson that an initiative measure will not violate the single-subject requirement if, despite its varied collateral effects, all of its parts are ‘reasonably germane’ to each other. We note also the existence of a more restrictive test recently proposed * in the dissenting opinion of Justice Manuel in Schmitz v. Younger (1978) 21 46B Cal.3d 90, 100 [145 Cal.Rptr. 517, 577 P. 2d 652], wherein he suggested that 'an initiative's provisions must be function- 4 ally related in furtherance of a common underlying purpose.' Our analysis of article XIII A convinces us that the several elements of that article satisfy either standard in that they are both reasonably germane to, and functionally related in furtherance of, a common underlying purpose, namely, effective real property tax relief." (22 Cal.3d at pp. 229-230.) (Italics added.) The Amador Valley court noted that two purposes of this single-subject rule were 1) to minimize the risk of voter confusion and deception? and 2) to avoid ° e ° c concluded the risk of voter c on was "diluted" 2 by taking judicial notice of the fact that is the measure received a great deal of Veents 5 ama prior to the election and Continued ) exploiting the initiative process by combining in a single measure several provisions which might not have commanded majority support if considered separate- ly.?? The court found that neither such (Footnote continued from previous page.) the fact that the Voter's Pamphiet so contained an elaborate and detailed explanation of the various elements of the measure. (Id., at p. 231.) 13. The Valiey court. found . there was no "exploitation" of the voters simply because the proposition could have been presented as separate proposi- tions as contended by itg opponents and that the various elements\of Proposition 13 were designed to "intezlock with the others to assure an effective tax relief pro -" (Id., at p. 232.) The court sta "Aside from the obvious difficulty of ever establishing satisfactorily such ‘independent voter Stag this standard would defeat man many ie egitimate enactments containing iso » arguably ‘unpopular,' provisions Ae soe arpa deemed necessary to the integrated funct of the ce tage a as a whole. FORE ie purpose was frustrated by the passage of Proposition 12. In Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 40-41 (157 Cal.Rptr. 855, 599 P.2d 46], the California Supreme Court considered whether the initiative concerning The Political Reform Act of 1974 violated the single- subject rule. That initiative had four major subjects: 1) regulation of election to public office, 2) regulation of ballot measures, petitions and elections, 3) regulation of public official conflicts of interest, and 4) the regulation of lobbyists. After tracing the history of the TFootnote continued from previous page.) fag?) Wetauould' daft or Euunt, tts force y for reasons that are constitutionall only for and acc y we conclude tha article XIII A does violate the single- subject requirement of article II." (22 Cal.3d at p. 232.) (Italics added.) 49B single-subject requirement for initiative measures from its inception and the application of the reasonably germane test the Fair Political Practices court concluded "Consistent with our duty to uphold the people's right to initiative process, we adhere to the reasonably germane test and, in doing so, find that the measure before us complies with the one subject requirement." (25 Cal.3d 33, 41./ (Italics addea.)** 14. We quote at length from the majority opinion by pet ro ph in rl pais Political Be ecision exp - @ reasons for adhering to the "reasonably germane" test as distinguished from a more restrictive test as urged by the real in interest. "'The amend- ment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstand- ing achievements of the ssive movement of the early 1900's. Drafted in light of the theory t all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted the people, but as a power reserved to them. Declaring it "the duty (Continued) (Footnote continued from previous pase) of the courts to ott guard thi (a G85)°176 ¢ “App, 24 ee Rptr. sot recaree most 9 of our ; . Acker a TBS “cal .App 24 55 ; : 1 Ca a 7 > " ur judicial poi to apply « diberal Beral to ower enever it is rier er may be oubts can reasonably be er in favor of the use of this reserve power, courts will preserve it." ( ; 189 Cal. Pe ot App . 34 So eahche e. é2a]).! v. 591 1155 » 557 4 2d tibet ta 33 = A.L.R.3da 10 (fns. omitted); (1967) 67 Cal.2d mi 28 al. . 26, 431 P.2d 650]). (a] In ke with that policy favoring the initia ine. the voters may not be limited to brief general statements but mav deal compre- wa and in detail within an area of w "Although the initiative measure be- fore us is wordy and complex, there is little reason to ect t claimed voter confusion could be eliminated or substantially reduced by dividing the f measure into four or ten separate pro- : Pia nll Se . foo (Footnote commiaars a pity: page.) ° P “2 cont a must Be borne. or does the possibility that some voters might vote for the measure--while objecting to some parts--warrant rejection of the reasonably germane test. Such risk is inherent in any initiative conta more than one sentence or even and ‘and in a single sentence unless the provisions are redundant. “The enactment of laws whether by the Legislature or by the voters in the last ' analysis always presents the issue whether on balance the proposed act's benefits exceed its shortcomings. If so, the remedy for short comings is repeal,. which will be difficult whether the law is adopted by the Legislature or the peopie. The difficulty of repeal is merely one factor to be considered by legislators and voters when cas their votes. "Given the widespread public debate of initiatives, the explanations in the ballot pamphlets and in the media, and the huge volume of legislative business-- over 1,000 bills enacted each year--it is unreasonable to assume that the initia- tive measures receive less scrutiny than proposed pe re pai er "The oll soy ae reserved the legis- lative themselves as well as having Eranted it to the slature, there is no reason to hold t the — people's power is more limited than that of the Legislature, and the single sub- ect r rements applicable to both Continued) 52B TT tere tel, a ee 8 Oe a “ G : rs 7 aa r : ~s ad Turning to the case at bench and our analysis of the text of Proposition 8 contained in the "California Ballot Pan- phlet, Primary Election, June 8, 1982" compiled by Secretary of State March Fong Eu, (hereinafter referred to as "Voters Pamphlet" and attached as Appen. A, post, p. 1155) considered in light of Evans, Perry, Amador Valley and Fair Political Practices, and Crawford v. Board of Bduce- tion (1980) 113 Cal.App.3d 633, 652, fn. 5 (170 Cal.Rptr. 495]), we hold applying the reasonably germane test, that Proposition 8 does not violate the single-subject rule. (Footnote continued from ote page.) ers a Cope es art. II, § 8, subd. 1a); ext Fagg not be used to setabiish ah bee a ¥: $A Ba soe, y, we adhere to the reasonably germane test for both. "The provisions of the initiative are reasonably germane to the subject of political practices, and there is no violation of the one subject requirement." (Italics added.) (25 Cal.3d at pp. 41-43.) 53B Proposition 8 amends the Constitution © by deleting section 12 of article I deal- ing with bail and by adding section 28 to article I. Section 28 sets forth six . provisions all dealing with the criminal justice system in the areas of law enforcement and criminal procedure. The areas are restitution in criminal cases, the right of students and staff to be safe at school, evidence at criminal pro- ceedings, bail, and use of prior convic- tions in criminal proceedings. It is made quite clear from the preamble to this section (subdivision (a)) that the "Right to Safe Schools" is a right to be free from criminal conduct. The other pro- "visions on their face concern criminal procedural changes all designed to place emphasis on the rights of the "other party” to a crime--the victim. The initiative also enacts statues which add 54B certain sections to the Penal Code and the Welfare and Institutions Code. Again each one of these provisions relates to a criminal law and procedure. Each is designed to ensure that those who commit crimes receive proper punishment and that the victims and potential victims of crime receive protection. (See Appen. A, post, p. 1155.) The "official" title and summary prepared by the Attorney General fairly described in concise terms the scope of Proposition 8. Included in the Voters Pamphlet was the complete text of Proposition 8 for the voters to read. (See Appen. A, post, p. 1155.) An "Analysis by the Legislative Analyst" William G. Hamm, appearing in the Voters Pamphlet also pointed out that Proposition 8 proposes many changes in the State Constitution and statutory law ~~ 7 a rr —- - —™ that would alter criminal justice pro- cedures and punishments and constitutional rights." Mr. Hamm's analysis went on to summarize the major changes. Both the Attorney General and the Legislative Analyst stressed that approval of the measure would result in major state and local fiscal costs. (See Appen. A., post, p. 1155.) ° Each of the several provisions in Proposition 8 are reasonably germane to the one common purpose and general object as expressed in the title of the initia- tive which is to reform the criminal justice system so that the system will more effectively protect all California citizens--victims and potential victims of crime. Each of the provisions is logically germane to the title. The words “criminal justice" which appear as the first two words of the official title of the initiative constitute an acceptable abreviation when taken in context and reasonably refer to the entire system of criminal justice. Each of the provisions are auxiliary to and promote this main purpose. | The pro and rebuttal argunents by prominent and knowledgeable governmental officials and citizens involved in Proposition 8 from its inception which are incorporated in the Voters Pamphlet make it absolutely clear that the single general purpose and object of Proposition 8 is directed at reforming California's system of criminal justice to make it more responsive to the needs of all California victims and potential victims of criminal activity. (See the arguments in favor of Prop. 8 by Lieutenant General a Mike Curd, Attorney General George Deukmejian, and the pro and rebuttal F f: arguments of Paul Gann in Appen. A, post, p. 1155.) Any risk of "voter confusion" in respect to Proposition 8 was dispelled by oT wide general dissemination of the Voters Pamphlet and heavy media coverage. The Voters Pamphlet (Appen. A, post, p. 1155) was mailed to every household in Califor- nia where more than one voter with the same surname resided and additional copies were available free by either calling or writing the county clerk or registrar of voters. Each voter could personally read the summary by the Attorney General, the analysis by the Legislative Analyst, the arguments pro and con and the complete text of Proposition 8. We take judicial notice of the massive statewide media coverage prior to the June 8 primary election which included editorial positions taken by leading newspapers discussing the 58B initiative and its predicted effects. (Evid. Code, § 452, subd. (g).) Interest in and, therefore, understanding of the objective of the initiative and the role each of the provisions played in achieving that goal was heightened by the positions taken on Proposition 8 by candidates during the primary for statewide office as well as media coverage of the pro and con arguments in the Brosnahan case. Nor has there been an "exploitation" F of the voters by not presenting each provision in Proposition 8 to them as a separate initiative. The voters favored the Cvheoathton by a vote of 2,770,225 ; (56.4 percent) to 2,144,284 (43.6 percent). a There is no showing, and it would be sheer | speculation to assume that the result would have been any different if any provision contained in Proposition 8 had been submitted to the voters as a separate initiative. To the contrary, the fact that Proposition 4 concerning bail on the same ballot passed by a larger margin of votes than did Proposition 8 which also has a bail provision would tend to indicate that the voters selectively considered each provision in Proposition 8, and there was some aspect of Proposi- tion 8, other than the bail provision, that contributed to the drop off of votes as between the two propositions.? I5. We note, without deciding, that Proposition 4 concerning bail which paneed : by a larger number of votes than did : Proposition 8 may prevail only over those provisions in Proposition 8 rela to bail to the extent there is ac ct in the provisions of the two propositions. California Constitution, article XVIII, section 4, provides: "A p sed amend- sink ot eweleien. sas ot by a waserity of electors approved a votes thereon takes effect the day the election unless the measure provides otherwise. If of 2 or more measures approved a same election conflict, those of the measure a tl se nie} adtarnaiee yo 60B Furthermore, it would have been impractical and illogical to require the thousands of concerned citizens who carried the peti- tion and the 663, 409 citizens who signed the petition to shuffle such a mass of separate petitions directed at the one objective previously discussed. Moreover, if there was a separate initiative process for each provision of Proposition 8, it would have unnecessarily lengthened the ballot and created confusion for all con- cerned. We are not unaware of the concurring and dissenting opinion of Justice Mosk and the dissenting opinion of Chief Justice Bird in Brosnahan v. Eu, supra, 31 Cal.3d 1. These justices express the view that the more restrictive functionally related test proposed by Justice Manuel in his dissenting opinion in Schmitz v. Younger, (1978) 21 Cal.3d 90 [145 Cal.Rptr. 517, 61B Veleet @, SOA) eae wir 577 P.2d 652] should be used to resolve the single subject issue rather than the reasonably germane test. (31 Cal.3d 1, 9, 17.) The separate opinion of Justice Mosk in Brosnahan states that the more restric- tive functionally related test proposed by Justice Manuel in his dissenting opinion in Schmitz v. Younger, supra, 21 Cal.3d 90 was "introduced" in Amador Valley and Fair Political Practices and "in substantial effect it has been adopted by this court. I fully accept it." (31 Cal. 34.1, 9.) With due respect, our reading of Amador Valley and Fair Political Practices indicates that those cases did not "introduce" the functionally related test but merely acknowledged its "existence." The majority opinion in Amador Valley (per Richardson, J., with Tobriner, Mosk, . > ose - SS oe 7% se Re eee é Clark, Manuel and Newman, JJ. conc.), states: "We note also the existence (italics added) of a more restrictive test recently proposed in the dissenting opinion of Justice Manuel in Schmitz v. Younger (1978) 21 Cal.3d 90, 100 [145 Cal.Rptr. 517, 577 P.2d 652], wherein he suggested that ‘an initiative's provisions must be functionally related in furtherance of a common underlying purpose.' Our analysis of article XIII A convinces us that the several elements of that article satisfy either standard in that they are both reasonably germane to, and (italics original) functionally related in further- ance of a common underlying purpose, namely, effective. real property tax relief." (22 Cal.3d 208, 230.) Since Proposition 13 (the Jarvis-Gann tax initiative) met both the reasonably germane and functionally related tests, 4 #3 a * " fi % 638 a n ° > " ’ 4 " . ‘ .* « . a. ~ Y : : , P ress . Dy an i % SF ie eg. tt RS Pi Py ace” Bet) te Ola ee ae ay eNO ae we construe the notation of the "existence" of the latter as merely the driving of another nail into the lid of the empty coffin into which the opponents of Proposition 13 wished to place it. Our reading of Fair Political Practices discloses that the majority did not there "introduce" the functionally related test. To the contrary the Fair Political Practices majority opinion (per Clark, J., with Mosk and Richardson, JJ., cone. )2® in over five pages discussing the single-subject rule only briefly mentioned the existence of the dissent of Justice Manuel in Schmitz v. Younger, Supra, 21 Cal.3d 90. Justice Clark ° ce Newman ac and dissenting opinion stated "I e with the majority conclusion that e subject rule has not been violat- ed. (25 Cal.3d 33; 50.) Justice Tobriner concurred on the basis of the functionally related test. paged dissented by applying the same ‘ stated emphatically that "Consistent with our duty to uphold the people's right to initiative process, we adhere to the reasonably germane test and, in doing so, find that the measure before us complies with the one subject requirement." (25 Cal.3d 33, 41.) . Accordingly, in our opinion, the functionally related test was not "in substantial effect" adopted (whatever that means legally) by the Amador Valley and © Political Practices decisions. We are bound by the reasonably germane test which remains the law today. That test has served Californians well during the past 50 years and was applied as recently as 1978 in the Amador Valley case and 1979 in Fair Political Practices. Nor do we perceive any logical or persuasive reason to suddenly jettison the reasonably germane test in favor of the more restric- tive functionally related test. The fact that California's criminal justice system ox is being gored by Proposition 8 is not a legally cognizable reason for such a ® sudden flip-flop in the test used for resolving the single-subject issue presented in this case. In sum, we do not view Proposition 8 as the result of a so-called "log rolling" exercise. (See, Schmitz v. Younger (1978) 21 Cal.3a 90, 93, 97 et seq. (dis. opn.) (145 Cal.Rptr. 517, 577 P.2d 652]; Feir Political Practices Com. v. Superior Court, gupra, 25 Cal.3d 33, 40.) ‘The Proposition 8 "log" was used by the 2,770,225 concern- ed citizens who voted for it as an "[initiative] battering ram" (see, Amador Valley Joint Union High Sch._Dist. v. State Bd. of Zgualization, gupra, 22 Cal. 3a 208, 232 and fn. 12, ante)for the legitimate purpose of protecting all California citizens--victims or potential victims of crime by bringing about reasonable and meaningful reform in California's criminal justice system. (5) (See fn. 17.) We noid that Proposition 8 does not violate the single- subject requirement of article II, section 8, subdivision (d) of the California Constitution.>’” 17. Ass ‘ , that the functionally* relat ‘test is applied, ¥WFinction" is defined in Black's Law gent gad tS ugh ed. 1979) West Publish- st. ing Co., Minn., as: "Derived from Latin ‘functus, ' the past participle of the verb ' r’' which means to per- form, execute, a eter. « «6% e nature and er action of 3 activi ate to any or profession. . Office; duty; i11- ment ore a_definite end oF act sc na By the Cc e adjus tment > - Tes added.) pa ~—~—#¥¥iRelated" is defined in Webster's Third New International Dicti (1976), Merriam-Webster, G. & C. Merriam ingfield, Mass., as "having a relation- : connected reason of an establised or discoverable tion," and "Relation" ~ defined as "a logical bond; the state being mutually or reciprocally interested." (Continied) Cc. ogit 8 onstitut amendment or revision? An amendment. (6a) Defendant Wilson next contends that Proposition 8 is a constitutional "revision" as distinguished from an "amendment" and therefore unconstitutional. Defendant and the State Public Defender as amici, relying on McFadden v. Jordan, (Footnote continued from preva ous page.) we would still hold that sition 8 complies with the requirements of the . s e-subject rule. The only uirement of the functionally related test is that the various provisions of an initiative measure be "functionally related in further- — of 5 common ee ae a poy ‘ rr. a Pp. 33) The functionally related — standard only precludes "the amalgamation 4 of unrelated provisions" under some " : "broad umbrella" of a topic; it permits lete but focused initiatives. c ( 2 21 Cal.3d at pp. 01 Cee eee ee astion 8 focuses on the rights of crime victims. Each of its provisions is related in furtherance of its to reform the responsive to the needs and rights of victims and potential victims of crime. Proposition 8 does not constitute a comprehensive revision of the entire (Continued) | (Footnote continued from previous page.) criminal justice system, although its provisions cover different areas within the subject of criminal justice. It is readily apparent that many of the various a eg of Proposition 8 could have een the subjects for separate ballot pro- positions. However, none of the cases construing the single-subject requirement to date suggests that the above facts alone demonstrate Proposition 8 violates the single-subject e. The provisions of an initiative mea- sure’ under the functionally related test only need be functionally » not functionally ° provis- ion need not be @ a precisely ed ear of a fine watch which must mesh with e others in the operation of a sole function. Neither the provisions of Proposition 13 nor the provisions of the Political Reform Act of 1974 could meet such a stringent standard. Yet the Supreme C found that both measures satisfied the single-subject rule. Such precision is not in the drafting eh a "|initiative} battering ran." 5 Valley, supra, 22 Cal.3d 208, 228, The relationship between the various provisions of an initiative need only be "in furtherance of the common purpose." They all ly must be directed to the same end whether it be real property tax relief litical reform, or, as in Proposd on 8 reform of the criminal ce system as it relates to the actual , and poten victims of crime. Proposi- tion 8's provisions are both reasona $ Peo ae functionally related to the mCi e of its overall se-- i, es pike meggal aired pr for the ss of haem victims potential victims crimes. ¥ * i eae 698 ) Supra, 32 Cal.2d 330, argue that Proposi- tion 8 is a revision of the California Constitution because the various provisions of the initiative effect changes in three codes and alter protections provided by at least seven sections of the California Constitution. We hold that Proposition 8 is a constitutional amendment and not a constitutional revision and that it was therefore properly adopted by the initia- tive process. Our reasoning follows: (7) It is clear that while the voters may amend the state Constitution through the initiative process set forth in article II, section 8, the Constitution may be revised only by two methods set forth in article XVIII. Under the first methoc, the Legislature must postpone the revision to be submitted to the voters and under the second, the Legislature must ce , 7 if e ® x ‘ submit to the voter's at a general election the question of whether to call a consti- tutional convention. (Amador Valley, Supra, 22 Cal.3d 208, 221.) Thus an initiative measure may not "revise" the Constitution. (Id.) The defendant's reliance on McFadden v. Jordan, supra, 32 Cal.2d 330 is misplaced. In McFadden the Supreme Court in August 1948 struck down an initiative measure which would have added 21,000 words to the existing Constitution as being an ‘attempt to revise rather than amend the Constitution. That initiative measure dealt with varied and diverse subjects including pensions, gambling, taxes, oleomargarine, healing arts, civic centers, senate reapportionment, fish and game, and surface mining. Its enactment would have repealed or substantially altered at least 15 of the then 25 articles in the Constitution. Of significance here is the fact that the Supreme Court in McFadden could not apply the single-subject rule to the challenged initiative measure since that constitutional requirement was enacted at the same election at which the challenged initiative measure was scheduled to be submitted to the voters. The amendment/revision rationale became much less important after enactment of article II, section 8, subdivision (d), of the California Constitution and was not of necessity considered in the Fair Political Practices case where the Political Reform Act initiative was held not to be violative of the single-subject - rule. In Amador Valley, supra, the state Supreme Court considered the contention that Proposition 13 was a revision rather than an amendment to the Constitution. The court reexamined its holdings in McFadden : and in Livermore v. Waite (1894) 102 Cal. z 113 [36 P. 425], an earlier decision upon PD ~ watch the MeFadden court relied, end ; stated: "Taken together our Livermore and ‘ McFadden decisions mandate that our : analysis in determining whether a particular ig constitutional enactment is a revision or ¥ an amendment must be both guantitative and : | Qualitative in nature. For example, an " enactment which is so extensive in its 3 provisions as to change directly the F ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous 4 existing provisions may well constitute a » revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustra- Poctnte Gonttillied pa ce previous page.) we would still hold that sition 8 re pe with the requirements of the le-subject rule. The only ulrement of the functionally related test is that the various provisions of an initiative measure be "functionally related in teen wat of a common underl purpose." Sets STE ,22 Cal.3d » at (i ep ) eet tally related standard only precludes "the amalgamation of un- related provisions" under some "broad umbrella" of a topic; it permits parse but focused meni ae tut an ane eae -3da at pp. P ssent) RR. cosition 8 focuses on the ' rights of crime victims. Each of its provisions is related in furtherance of its to reform the criminal justice system make it more responsive to the needs and rights of victims and potential _ victims of crime. Proposition 8 does not constitute a comprehensive revision to the entire criminal justice system, although its ig oo cover different areas within pcan gs of criminal justice. It is apparent that many of the various provis ons of Proposition 8 could have been subjects for separate ballot proposi- rig B However, res ig the oars nage ae e single-subject requiremen e suggests that the above facts alone demonstrate Proposition 8 violates the single-subject rule. The provisions of an initiative mea- sure under the functionally related test % only need be functionally » not B. functionally provi- Be sion need not a precisely machined of a fine watch which must mesh wih Continued) wy ’ 7 i. 4 x 74B ae Z tion, ‘the parties herein appear to agree that an enactment which purported to vest . all judicial power in the Legislature @ would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change." (Amador Valley, supra, 22 Cal.3d at p. 223.)75 (1talics added.). ; Is. e reme court in a | Valley found that Proposition 1 enact- a ing article XIII A, was not a revision of my! the Constitution. In re to article - ae XIII A's titative effect on the Constitution, the court noted that it only contained 400 words and significantly affected only one other article of the Constitution--article XIII. é With respect to its qualitative effect on the basic plan of government, the i o2 SE: court rejected cally argument A (6b) Under the quantitative and qualitative test of Amador Valley, Proposition 8 is an amendment and not a revision of the state Constitution. In quantitative effect the constitutional amendment portion of Proposition 6 is not extensive. It adds less than 700 words, approximately one-fourth of which consti- “ate a preamble. It expressly repeals only one section of the Constitution and adds only one. The repealed section dealt with bail and pretrial release. There is no comparison between the quantitative aspects of this amendment and the "amend- ment" ruled invalid in Mc Fadden. With respect to the qualitative nature of Proposition 8, it obviously does not restructure the basic plan of government. The fact the amendment may have a signifi- cant fiscal impact on local and state government does not make it a "revision." (Cf. Amador Valley, supra.) From both a qualitative and quanti- tative viewpoint, Proposition 8 is considerably less expansive than the Political Reform Act Initiative of 1974, upheld as valid, which contained more than 20,000 words and which covered such diverse subjects as elections, public officers, and lobbyists. (8) In summary, we hold that Proposi- tion 8 was constitutionally eligible for the Jume 1962 primary ballot, does not violate the single-subject requirement of ' article II and is a constitutional amendment as distinguished from a consti- tutional revision. We hold that Proposi- tion 8 on its face is a valid constitu- tional amendment which became effective on June 9, 1982. D. Does Proposition 8 comply with funda- mental constitutional purposes and principles? Yes. Proposition 8 is in complete harmony with the basic purpose of our American form of constitutional government. Broad constitutional principles reinforce, buttress and underpin our holdings on the narrower constitutional issues raised in the instant case, as hereinbefore discussed. ’ Indeed, to hold other than we have in respect to the narrower constitutional issues would not merely strike a discordant note with, but would also violate, those basic overriding constitutional purposes and principles. We deem it necessary and appropriate to again review historically and reaffirm, those basic constitutional purposes and principles and assess their relationship to the case at bench. The founding fathers of this democra- tic republic deliberated on the most persistent and perplexing of all political problems, the tensions between the claims of order and the claims of freedom. They tipped the balance in favor of social order. (See Kirk, The Roots of American Order, sponsored by Pepperdine University, Open Court, La Salle, I11., 1974.)7?9 The three major historic documents the United States had produced ((1) the Declaration of Independence, (2) the Constitution, and (3) the Federalist) all confirm that the fundamental purpose of our American form of government is to provide security for its citizens from 19. The frontispiece states: "The tion of this book has been red | epperdine University as a contribution toward the celebrating of the Bicentennial the United States; it is meant to assist of in renewing an apprehension of America's threats both outside and within its borders, so they may enjoy their individual freedoms. The Declaration of Independence was written by the 33-year-old Thomas Jefferson in the parlor of his second floor walkup in Philadelphia in a half-day's time. This document with only a few corrections was reported to Congress. On July 4, 1776, the Declaration was signed by 56 of our founding fathers, 24 of whom were lawyers and jurists. The second paragraph of the Declaration states: "We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their » ey m wees Ds wey gt a te ao and modified article I, sections 13°" and 24°° of the California C [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1159%3A1. Public record. Not legal advice.