Petition for Writ of Certiorari — Hafner v. Alabama

Supreme Court brief1985

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SUPrEIne VOUTT, U.o.

85-760" | FILED

OCT 29 1985

JOSEPH F. SPANIOL, JR,

CLERK

eaenene

SUPREME COURT NO. ‘

IN THE SUPREME COURT OF THE UNITED STATES

1985-86 TERM

JOSEPH THOMAS, HAFNER,

Petitioner,

vs.

STATE OF ALABAMA,

Respondent.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF ALABAMA

Case No. 83-92

First Division No. 956

PETITION FOR WRIT OF CERTIORARI

THOMAS M. HAAS

JAMES M. BYRD

Attorneys for Petitioner

255 St. Francis St.

‘Mobile, Alabama 36602

1-205-432-0457

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ec ane

ere

QUESTIONS PRESENTED FOR REVIEW

Did the Alabama Legislature violate

the due process of law clause at the

Fourteenth Amendment of the United States

Constitution by enacting a minimum three

(3) year mandatory imprisonment without

possibility of parole and no maximum

penalty criminal statute that is vague,

“indefinite and uncertain due to its fail-

ure to limit, define or even describe the

substance, material or item, the possession

of which is prohibited?

Did the Alabama Legislature violate

the equal protection clause of the United

States Constitution by enacting a minimum

three (3) year mandatory imprisonment

without possibility of parole and no maxi-

mum penalty criminal statute under which

the imposition of sentence cannot be

suspended, deferred or withheld unless

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aeadelé mds ‘bes

ici oe. Te Ss ues

pa Fah

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the prosecuting attorney decides the

defendant provided substantial assistance

in the identification, arrest, or. convict-

ion of defendant's accomplices, accessor-

ies, co-conspirators, or principals when

the Alabama Code elsewhere provides a de-

fendant who is sentenced to ten (10) years

or less imprisonment has the right to re-

quest probation and the granting of pro-

bation is in the sole discretion of the

trial court?

Was the warrantless stop of

Petitioner and seizure of a container

from Petitioner's vehicle and subsequent

warrantless search of said container .

without probable cause and without exigent

circumstances a violation of Petitioner's

Fourth Amendment to the United States

Constitution right to be free from

unreasonable search and seizure?

LIST OF PARTIES

The parties to this proceeding are

Joseph Thomas Hafner, Petitioner, and

the State of Alabama.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW.... i.

LIST OF PARTIES..........e0e+0-0-ei4i,

TABLE OF CONTENTS.........+0+00++-iV.

TABLE OF AUTHORITIES.............. V.

REFERENCE TO REPORTS OF OPINIONS

DELIVERED IN COURTS BELOW ... l.-

GROUNDS INVOKING JURISDICTION..... 1-

CONSTITUTIONAL PROVISIONS AND

STATUTES eeeeeeeoeeeeeeveenvee eee 2.

STATEMENT OF THE CASE............. 6:

BASIS FOR FEDERAL JURISDICTION.... 6,7

MEE Ci GE Ad ccccecdcccceccscces

CERTIFICATE OF SERVICE ........... 29

SOIR ROR Dh cc skis udssecsccnces =

iv.

TABLE OF AUTHORITIES

CASE LAW: PAGE

Boyce Motor Lines v. United States,

oe Se

329, 330, 96. L. Ed. 367, 371

|e CR a gi ie Sl

Chambers v. Maroney,399 U.S. 42,

%6 L-Ed2d 19-90 S.ct.

BOTS GEeT Or CebeS Se Ses ccccccce

cootisge v. New eee

03 U.S.

443, 91 S.Ct. 2022 (1971)....

Grayned v. City of Rockford,

408 U.S. 10z- 108, 92 S. ce.

2294, 2298, 33. L.Ed2d 222,

227-28 Ces chet bes

Illinois v. Gates, U.S. 5

76 L.Ed2d 527, T03 S.ct>—

ie I ec ddnnuceeesce

Oyler v. Boyles, 368 U.S. 448,

456, -Ed2d 446, 82 S.Ct.

501 ee ek A a we oo

United States v. Batchelder,

442 U.S. 114, 125, 99 S.Ct.

298, 60 L. Ed2d 755, 766

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TABLE OF AUTHORITIES

continued

PAGE

United States v. National Dai

Products Corporation,

—we 6 6m en OS £68.

gn wees is) 5. Ed2d __» 366...12

CONSTITUTIONAL PROVISIONS:

Ri ED 2

U >. Ss . CONST — amend - XIV e*eeneeneteneeneeeneee 2

STATUTES :

Code of Alabama (1975) 8 12-11-30.. 6

Code of Alabama (1975) 8 15-22-50.. 4,13

Code of Alabama (1975) 8 20-2-2(15) 5,122

Code of Alabama (1975) 8 20-2-70...12

Code of Alabama (1975) 8 20-2-80(1) 3

Code of Alabama (1975) § 20-2-81... 3

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REFERENCE TO REPORTS

OF OPINIONS DELIVERED

IN COURTS BELOW

The conviction of Petitioner in the

Circuit Court of Baldwin County, Alabama,

was affirmed by the Court of Criminal

Appeals without opinion on April 23, 1985;

Application for Rehearing was overruled

without opinion on July 2, 1985; and Peti-

tion for Writ of Certiorari to the Supreme

Court of Alabama was denied without opinion

on August 30, 1985.

GROUNDS INVOKING JURISDICTION

The statutory provision which confers

jurisdiction to review the judgment or

decree in question by writ of certiorari

is 28 U.S.C. 8 1257(3), which permits

review by the Supreme Court of the United

States by writ of certiorari of the judg-

ment of the highest court of a state

where any right, privilege or immunity

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is specially set up or claimed under the

Constitution, treaties or statutes of the

United States.

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CONSTITUTIONAL PROVISIONS

AND STATUTES =—

AMENDMENT FOUR TO THE UNITED STATES

CONSTITUTION

"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 describ-

ing the place to be searched, and the

persons or things to be seized.”

AMENDMENT FOURTEEN TO THE UNITED

STATES CONSTITUTION

"All persons born or naturalized in

the United States, and subject to

the jurisdiction thereof, are citi-

zens 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 life, liberty or pro-

perty, without due process of law;

nor deny to any person within its

jurisdiction the equal.protection

of its laws."

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CODE OF ALABAMA (1975)

8 20-2-80(1).

"Except as authorized in Chapter 2,

Title 20:

1. Any person who knowingly sells,

manufactures, delivers, or

brings into this State, or who

is knowingly in actual or con-

structive possession of, in

excess of 1 kilo or 2.2 pounds

of cannabis is guilty of a

felony, which felony shall be

known as ‘trafficking in cannabis.’

If the quantity of cannabis in-

volved:

a. Is in excess of 1 kilo or

2.2 pounds, but less than 2,000

pounds, such person shall be sen-

tenced to a mandatory minimum

term of imprisonment of three (3)

calendar years and to pay a fine

of $25,000.00."

820-2-81.

"(a) Notwithstanding the provisions

of Chapter 22, Title 15, with respect

to any person who is found to have

violated this article, adjudication

of gee or imposition of sentence

shall not be suspended, deferred, or

withheld, nor shall such person be

eligible for parole prior to serving

a mandatory minimum term of imprison-

ment prescribed by this article.

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"(b) The prosecuting attorney may

move the sentencing court to reduce

or suspend the sentence of any per-

son who is convicted of a violation

of this article and who provides sub-

stantial assistance in the identifi-

cation, arrest, or conviction of any

of his accomplices, accessories, co-

conspirators, or principals. The

arresting agency shall be given an

opportunity to be heard in aggrava-

tion or mitigation in reference to

any such motion. Upon good cause

shown, the motion may be filed and

heard en camera. The judge hearing

_the motion. may reduce or suspend the

sentence if he finds that the defen-

dant rendered such substantial

assistance."

8 15-22-50.

"Circuit Courts and District Courts

subject to the provisions and con-

ditions hereinafter provided, may

suspend execution of sentence and

place on probation any person con-

victed of a crime in any court exer-

cising criminal jurisdiction. The

court shall have no power to suspend

the execution of sentence imposed

upon any person who has been found

guilty and whose punishment is fixed

at death or imprisonment in the pen-

itentiary for more than ten (10)

years. Except as provided in the

ee sentence, the court, after

a plea of guilty, after the returning

of a verdict of guilty by the jury

or after the entry of a judgment of

guilt by the court, may suspend

execution of sentence and place the

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defendant on probation, or may inm-

pose a fine within the limits fixed

by law and also place the defendant

on probation."

D. §820-2-2(15).

"MARIHUANA, All parts of the plant

Cannabis sativa L., whether grow-

ing or not, the seeds thereof, the

resin extracted from any part of

the plant and every compound, man-

ufacture, salt, derivative, mixture

or preparation of the plant, its

seeds or resin. Such term does not

include the mature stalks of the

plant, fiber produced from the

stalks, oil or cake made from the

seeds of the plant, any other con-

pound, manufacture, salt, deriva-

tive, mixture or preparation of

the mature stalks (except the resin

extracted therefrom), fiber, oil or

cake or the sterilized seed of the

ep which is incapable of germin-

ation.”

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STATEMENT OF THE CASE

Indictment charged:

“Joseph Thomas Hafner whose name is

otherwise unknown to the Grand Jury

other than as stated, did knowingly

sell, manufacture, deliver, or bring

into this state, or did knowingly

possess, in excess of 2.2 pounds of

marihuana, in violation of Title

20-2-80 of the Code of Alabama,

against the peace and dignity of the

State of Alabama,"

S 12-11-30, Code of Alabama (1975),

confers exclusive original jurisdiction cf

all felony prosecutions in the Circuit

Court in the district wherein the alleged

offense occurred.

The federal questions sought to be

reviewed by this petition were first

raised in Petitioner's motion to dismiss

the indictment and motion to suppress

which were filed in the Circuit Court of

Baldwin County, Alabama, prior to trial

of your Petitioner. Said motion to dis-

miss the indictment was denied by the

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trial court and said motion to suppress

was heard during trial and denied by the

trial court and, after non-jury trial in

the Circuit Court of Baldwin County,

Alabama, wherein Petitioner was adjudged

guilty, Petitioner was sentenced to

twelve (12) years imprisonment and fined

$25,000.00.

The Court of Criminal Appeals of

Alabama affirmed Petitioner's conviction

without opinion on April 23, 1985, and

on July 2nd, 1985 said court, without

opinion, overruled Petitioner's Applica-

tion for Rehearing with Correct Statement

of Facts.

Petitioner filed Petition for Writ

of Certiorari to the Supreme Court of

Alabama, with Correct Statement of Facts,

which was denied without opinion on

August 30, 1985.

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Alabama Chief of Police, Condie Langham

testified that an unidentified person of

unknown reliability telephoned him and

advised him that a man and woman just

came to a trailer from the Atmore area

with marijuana in whiskey cartons to be

sold. Chief Langham testified that in a

second call the unknown individual of un-

known reliability advised him that the

marijuana was in egg cartons approximately

twelve inches square, and that a white

male in a small white or light colored

pick-up truck would be at the trailer the

afternoon of the next day to purchase

some marijuana.

Baldwin County Deputy Sheriff

Thomas H. Nunley testified he arrived at

the scene where petitioner's vehicle had

been stopped and he placed Petitioner

under arrest. Thereafter he removed an

egg crate from the rear of Petitioner's

truck even though, according to Chief

Condie Langham, the egg carton was not of

the size given by the unknown individual

of unknown reliability. Officer Nunley

then opened the sealed box and observed

green plant material later determined to

be marijuana. Officer Nunley testified

no effort was made to obtain a search

warrant for the trailer during the 48 hour

interval between the time of the first

call advising the police of the marijuana

in the trailer, and no effort was made to

obtain a search warrant for the trailer

or the white or light colored pick-up

truck during the 24 hour interval between

the time of the call advising of the pro-

posed purchase of marijuana and the actual

purchase:

“because our confidential infor-

mant was not, as far as I was

concerned, was not reliable, be-

cause we had not used the infor-

mant before."

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Officer Nunley, as had Chief Langham and

as did Officer Lance Monley, Baldwin

County Deputy Sheriff who maintained

surveillance on the trailer, for the 24

hours from the afternoon of the second

call until the afternoon of the arrival

of the white or light colored pick-up

truck,testified that no egg carton was

seen in Petitioner's truck until after

Petitioner had been stopped, ordered out

of his vehicle and placed under arrest.

The trial court denied Petitioner's

Motion to Suppress the evidence due

to the unconstitutionality of the

search and seizure of his vehicle and,

after overruling Petitioner's objection

to the introduction of the evidence and

renewal of his Motion to Suppress,

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admitted into evidence the marijuana

seized from the container in

Petitioner's vehicle.

The Alabama Legislature enacted a

criminal statute with severe penalties

with the ultimate question of fact

being a term, i.e. cannabis, that was not

and had not been defined or used before.

A vague statute does not give adequate

"notice of the required conduct to one

who would avoid its penalties," Boyce

ll.

Motor Lines v. United States, 342 U.S.

337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367,

371 (1951}, is not “sufficiently focused

to forewarn of both its reach and cover-

age," United States v. National Dairy Pro-

ducts Corporation, 372 U.S. <a; sa

§.Ct. , 589, 9 L.Ed.2d , 566, and

“may trap the innocent by not providing

fair warning.” Grayned v. City of Rock-

ford, 408 U.S. 104, 108, 92 S.Ct. 2294,

2298, 33 L.Ed.2d 222, 227-28 (1972). Else-

where in earlier criminal statutes the

Alabama Legislature had prohibited the

possession and sale of marijuana and had

by separate criminal statute expressly de-

fined the term marijuana at law. See

§ 20-2-70, Code of Alabama (1975),

§ 20-2-2(15), Code of Alabama (1975). In

the trafficking in cannabis statute, how-

ever, there is no definition of the term

cannabis, and there is no reference nor

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is there any definition of cannabis as

used in said trafficking statute found

anywhere in the Alabama Code. Therefore,

the trafficking in cannabis statute when

it left the legislature was not complete

in all its terms and is not definite and

certain enough to enable every person, by

reading the statute itself, to know what

his rights and obligations are and to

know how the trafficking in cannabis

statute will operate when executed.

II.

Under 8 15-22-50, Code of Alabama

(1975), any person in the State of Alabama

sentenced to imprisonment for a term of

ten (10) years or less has the right to

request the Court suspend, defer or with-

hold execution of said sentence and place

him on probation. The trafficking in

cannabis article, however, removes the

right to request probation from defendants

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convicted thereunder and places the privi-

lege to request probation in the unbridled,

uncontrolled, and subjective discretion of

the district attorney. In addition, the

trafficking in cannabis article requires

defendants to earn the right to request

probation by performing acts not required

of any other criminal defendant in the

State of Alabama.

This Honorable Court held in United

States v. Batchelder, 442 U.S. 114, 125,

99 S.Ct. 298, 60 L.Ed2d 755, 766 (1979):

"Selectivity in the enforcement

of criminal law is, of course,

subject to constitutional con-

straints. » «+«e(9) The equal

protection clause prohibits

selective enforcement ‘based

upon an unjustifiable standard

such as race, religion, or

other arbitrary classification.’

Pye v. Boyles, 368 U.S. 448,

° Ed. 446, 82 S.Ct.

501 (1962)."

The Alabama trafficking in cannabis stat-

ute and the punishment provisions thereof

violate the equal protection clause of

14,

itqg e403 #ennag boa 4

jmlbivdan eto sd repr s

> ah

oizetpelb evidoetdin Sm ba

,OC013 20548 oi -{SIsO7 5s sods

‘7 ciivoes alolsza abdagaas &

i my Be cae

it teaupes G3 sfigiy-ef2 par. ——

Hh Wiese ea, i

a voxivupet Joe ajos galeoiteg gicmmeeeee

a5: Se be rabasteb jesiabis wee ‘2 8

4 i :

Hii oa ha i

Hq 2 Fat: 7

yi <r Pas | o° 32uyvo0D si¢e7enoH eid 2

a2 A ver

Vig es

q , evel) Bat , fet B&bg.a we eee

, ; Os

Me tpeaest6%ss SAT nt ioosabaal —

Fi ,s4 3009 30 eh welt i LA

he -aon Lanoisestsence. og |

if | faupeoAt, (2) 1s gak

Hi etididerg seiteis

N besad' jnegeo setae.

bsabsuse phaniion ana

aaiseeieentat

0d 2,3) B84

«32.28 5B “a ’

ia bien Ae Ts

ror ¥ “a

the United State Constitution by author-

izing selective enforcement and selectiv-

ity in the enforcement of the punishment

provision.

Denial of the right to request pro-

bation when sentenced to ten (10) years

or less imprisonment solely because a de-

fendant has been convicted of possession

of in excess of 2.2 pounds of cannabis is

selective enforcement based upon an

arbitrary classification. A murderer,

rapist, robber, or possessor of less

than 2.2 pounds of cannabis who is sen-

tenced to ten (10) years or less auto-

matically has the right to request the

court suspend, defer or withhold execu-

tion of his sentence, and the denial of

this right to request probation solely

because a defendant possessed in excess

of 2.2 pounds of cannabis is selective

enforcement based upon an unjustifiable

15.

i }

b W;

s *

wre

yb te

‘

at ee ee en + ie nce eing

;

CS ee

sida (HZ) 03! tea \ item node ot

6b s yiueced viseiag sneanoni ean! ‘gual a

4 to Seca vdeo weed ted Jeabas

Si BIGAMTES. 26 ebmnsoy ..< Se Beeasxe ah

ie trots De aud sapmecietes avisoal

<we7ohum A -foryeot tenes yzscta hd

cof Yo roaeseety SO sadder 782g

he 2h ote eencocuenis 2. ehnang. $5 as

«93ue enol. ie wie ae ty. os ae beni

ett3 + aap: a2: +2 = ade som pttnols

-oeRs: blodasiw 0 sin

to fotead fae ‘te

standard.

The second violation of the equal

protection clause is in the provision of

the sentencing statute which provides

that, regardless of this mandatory mini-

mum imprisonment without parole, if the

district attorney is satisfied that the

defendant provided substantial assistance,

he may move the court to defer, suspend

or withhold sentencing, This clearly

authorizes the unbridled, unfettered, un-

controlled, and subjective selectivity in

the enforcement of a criminal law to the

district attorney. Requiring the prose-

cutor to move for probation based upon

his own unbridled, uncontrolled, and

subjective judgment of substantial

assistance before the court can examine

the assistance and consider the probation

is an absolute bar to review of the

prosecutor's subjective judgment and

selectivity in the enforcement of the

16.

%. Ci. +

ph @

take | w .

caer

fey"

Ii¥=

~~ FP

i naling

Re Seg haw 7 a manne

VE ty a =H es

5 hy ig AP

meme Som

criminal law. Therefore, the sentencing

provision of the Alabama trafficking in

cannabis statute clearly violates: the

equal protection clause of the United

States Constitution.

Laks

Illinois v. Gates, U.S. _, 76

L.Ed2d 527, 103 S.Ct. _ (1983), although

dealing with search under warrant issued

on the basis of a partially corroborated

anonymous informant 's tip, held that a

totality of the circumstances examination

" “relia-

with the informant's “varacity,

bility" and "basis of knowledge” as

factors should be employed to determine

the existence of probable cause. An

examination of the totality of the cir-

cumstances reveals that under the facts

of this case,the police officers never

had probable cause to stop petitioner's

vehicle and certainly the totality of

1].

eee es

wee aldados

wgile

ak)

‘|

aoe

the circumstances establishes the exis-

tence of no probable cause for the seizure

of the egg carton from Petitioner'’svehicle

and the subsequent search thereof,

At the instant before Petitioner was

seized, the police officers had self-con-

tradictory information from an unknown

individual of unknown "varacity,"

"reliability," and "basis of knowledge."

The anonymous individual's information

that "a white male in a small white or

light colored pick-up truck would be at

the trailer the next afternoon" was the

only portion of the information that was

even partially corroborated immediately

before Petitioner's seizure. Clear'y

this "corroboration" does not give rise

to the belief that any criminal activity

was afoot and wholly insufficient under

a totality of the circumstances examina-

tion to establish probable cause for

18.

ear >

ine eae: a

ie | aow sanotsize4 oxolod Yonjant sda a

iN.

maa) i ; ae:

ite -soj-tles bad *xeottie: aaliog ond: (hs.

weonday ap Soy? aopisemtotat -ytes 71d:

13 . =

ti " viisavav owontes, to Levit

agbefwond., to. a2 ead” Bea. *. va titcsatt:

noltimgmerotnt a isebiviial soya |

cae . “) wn 2 ee 5 “4 P Rad ¢ » a (Sie 5" 4

a i _ 7

vid j iG 2% hd tf S17 we Toles

Hi s : .

Bi sit. cew “nogeratis sxeg is 29i i504

aa |

NG aw 3ac2 nokasarsp sas offs to mO+3%94. X

a 33

ai) att bedexedaxxo2 pcan | P

sat ||

bits)

Hi it

believing the self-contradictory informa-

tion from an anonymous individual of

unknown reliability.

Immediately after Petitioner was

seized, as an additional circumstance to

be added to the totality of the circum-

stances examination, the police officers

observed that the egg carton in Petition-

er's vehicle was not of the size the

anonymous individual of unknown reliability

had stated contained marijuana. There-

fore, even if this Court is of the opin-

ion the police officers had sufficient

circumstances under which seizure of

Petitioner was lawful, as soon as the

officers observed a fact that contradicted

the information from the unknown indi-

vidual of unknown reliability, the police

officers had no probable cause to proceed

further and search the container in

Petitioner's vehicle.

19.

aif es t+ fs r ie Yee hee Sg lia Ail Re aan Fst Bi, as

et, ‘ — =~... ore lkee <“+t799~1 las ats natvel.

a - . BIT Pi es #6 jf (Hea St .? oe tJ a a wre 2 <

i, *

, Mt ye oe ~

2s oa a

;

tha 4

ee. |

ee,

ae :

i oe

H -

+? : ~

7 - ks

i’

rit 4 >a ‘ i 2 ed ‘ i. P \- : ee

‘ A _. - Fe Pike a hed Le ke rad a

(ai -satityet ot mossea gps ect 3an3 bev te

sfig esia of) ‘i son oie sisidsy 2

eit tiskiee. ae ta, upbavi bes erin

i ~onedtt : scm tae, bactesnes bp Se,

| 2) els A ave, .

ame aauiog ona

“ak id add: io

Sak camer

“ey at eaye os

Ln rm

"Thus the most basic constitutional

rule in this area is that ‘searches

conducted outside the judicial pro-

cess, without prior approval by

judge or magistrate, are per se

unreasonable under the Fourth

Amendment - subject only to a few

specially established and well-

pee peng exceptions. ' The ex-

as age are ‘jealously and care-

ly drawn,' and there must be a

"showing by those who seek

exemption...that the exigencies

of the situation made that course

imperative.' ‘'(T)he burden is on

those seeking the ex emption to

ogee the need for it."'' Coolidge

New mopeenire: 29 L.EdZd 564,

, 3, 91 S.Ct. 2022

(1971).

The one exception to the warrant require-

ment that even remotely applies to the

facts of this case is ‘probable cause

coupled with exigent circumstances.'

See Chambers v. Maroney, 399 U.S. 42,

26 L.Ed2d 419, 90 S.Ct. 1975 (1970);

Coolidge, supra. In Coolidge, at 579,

this Honorable Court held that:

""exigent circumstances’ justify

the warrantless search of ‘an

automobile stopped on the high-

way," where there is probable

cause, because the car is '‘move-

20.

sq “Jasibat “a.

yd [svovqqs rm

ee iq. 955 ,ecaTeeigae ages bgbet

Jswed ef) Jenne pee eB gen

ot 2 oF vine so0tdue-~ Siembaesh

few Bl sy bodal castes vilaioegs

i xe witT arrol2qecks betsenlieb

Hi -9785 OB xiavotaet' 9Te~snolIq94

. a ed seum sets base’ awa yLiw?

tees ow spods yd gatwerde’

estanroatxe ef aatt. . ols

saucy tad ebam woldapsie aft Fo

79g ¢) uebred at(T5"/s aero sege

97 soliqumexs Si)> suitaat aeon2

sabi lesdS "'.32 103-beencons Woe

~, e0c SLbe.T Of (emtas ov %

ftot' 3.2 18 Che Te, ote

CEVOT)

(iupet Jnetraw ens 03 fo IgeARD ano out

oft oF galleqs yvlotomeyr neve 3867 708

tise efdadota® ai eres etfs 20 et>%

wesemuowls Imepixe s2tw bsalque

b bi G.0 Se gore . Vv exsdmsn) 96

He . £eBOVOl) -ETGE 50.28 08 .Ofe biba.7 9

2° 36 ,gabitood at Persie sabi ios

Sed bied J208 eldssonoHt ake

prise ‘seonstemuosts -

20 Hozsea geet

i aad nO.

ie a res aia Ag

eee ie ae eae ee

able, the occupants are alerted,

and the car's contents may never

be found again if a warrant must

be obtained." (T)he opportunity

to search is fleeting..." :

But as this court further held in

Coolidge, at 592-593:

“Here, as in Trupino, the deter-

mining factors are advance police

knowledge of the existence and

location of the evidence, police

intention to seize it, and the

ample opportunity for obtaining

a warrant. (cite omitted)...

We are convinced that the result

reached in this case is correct,

and that the principle it re-

flects - that the police must

obtain a warrant when they intend

to seize an object outside the

scope of a valid search incident

to arrest - can be easily under-

stood and applied by the Courts

and law enforcement officers alike."

In the case at bar today, the police

officers had advance knowledge of the

existence and location of the evidence.

The police had information from an un-

known informant of unknown reliability

of the presence of the evidence in the

trailer for over 48 hours and had over

21.

ae a

dt a an

Inu Jearrew ht ae

yt tnasaqqa, a

ai ae

Pie)

nt bled seu 9 2

. | 73> a

~2eteb eft . on, Aras ll

#aileoq escsvhs apc TOSS:

hoa aonetetee

s>ileqd ,somebios wt

of? bop 32 sadee't

antainide. tol qitegaat

o<. (hstaine e324) ae

tives wit Imi? tesa eae ae

JysTzG0 ef 8482 O263 FP eRe

“83.34 3. Glanizg ena sana bas.

3 Bim on) foe HitS jay = nibs

basin) Xest3 corte nico me ga

soars aps Phdlgeas si

rehicis pas

-xéinw vitees od”

atsve) eft. a0 beri

ostinx eseotiio she

: AE Sie

yoiiog a Yabo xed 7,

} sata

ait te sgbeivond 9

arn?

ar @ Ss

24 hours advance knowledge of the evidence

to be in Petitioner's truck. For.over

24 hours prior to Appellant's seizure

and the search of the contents of the

container in his vehicle, the police had

the intention to seize Petitioner and the

container and search the container as is

evidenced by the fact that surveillance

was set up 24 hours in advance, police

cars were manned and ready to follow

Petitioner and stop his vehicle, and

immediately upon stopping Petitioner's

vehicle, the police officer went straight

to the egg carton container, seized it

and searched it. The police officers

also had ample opportunity for obtaining

a warrant but during the over 48 hour

period after receiving the information

about the presence of marijuana in the

trailer, before seizing Petitioner and

searching the container in his truck, and

22.

% anebive, wi

‘}

ie)

ort

tot

“

‘

a lie

ak $y waatan99 eee toner A

“ad ae Sr

San poaaT ited +e snit sae3 o2 et Eiarekt

cr’

hye ig = a ns

my aint yt chime mveutniar to on othe a ana ewe steeper

Ce rear resins temwie ir Sener nner

id oiled o3 ywhest bak beesar Stew ez

f ,

{ bore ,gloidev ein aose bre tengiss3

Bi , | Pai |

Hee e' “encritist gaiqgode moqu vissatihen

Sigleste tase yen lato. S52) oF ox | erate

42° Sasige e tealaonos notte 5 gas ‘cy

BrsyEtia estlog ade aaa

sitiecdioe i sot Patamabeneniais bad oe

during the over 24 hour period after

receiving the information about the

marijuana to be in a white or light

colored pick-up truck before the seizure

of Petitioner and the search of the con-

tainer in his pick-up truck, absolutely

no effort was made by any police officer

to obtain a warrant from any judge or

magistrate. The only explanation given

by the police for their failure to obtain

prior approval by a judge or magistrate,

was:

"Because our confidential infor-

Mant was not, as far as I was

concerned, was not reliable,

because we had not used the

informant before."

Under the facts testified to by the

officers whose burden it is to show that

the exigencies of the situation made the

warrantless search course imperative,

clearly established that no probable cause

existed, and under a totality of the

23.

Am are

circumstances view certainly prove that

no probable cause coupled with exigent

circumstances ever existed. The oppor-

tunity to search was not fleeting because

the officers had anywhere from between

24 and 48 hours advance notice of the need

for a warrant and, in addition, no claim

can be made that it was not practicable

for the officers to secure a warrant dur-

ing the 24 to 48 hours before stopping

Petitioner's vehicle, seizing a container

from Petitioner's vehicle and conducting

the warrantless search of said container.

Therefore, the warrantless search is

per se unreasonable and under the Fourth

Amendment of the United States Constitu-

tion the evidence obtained therefrom was

due to be suppressed.

Respectfully submitted,

} GOB of ee hl .

~ THOMAS M. HAAS, Attorney for

Petitioner

24,

al / P a ‘ “i, te “

{ ;

he thanks ‘ Pee bale RuG>. ‘peuna, sidsdoue: “

ae TOC BET. beg ies: TsV6. eames See>"s,

fe , ; : it . ‘ é : é oyps a ae :

fe stvpoed gaisuel? son Base foanee, 2 1oEM

ie Boat .

Mee pesiged go7) eraswras Dad, tus te =

oh.

boom wit Ao eokiger oonevhs: exuod 65 haa

# me ge ~ 2 te ‘ > be

“ = ee a ~

ima = % 7 fs . a? tu e« a ea a =

> a

+ ae ¥r , By ot >

a -. % pat 1s > _ = £5": . ee

ke ~ = t Oy Pe . er ee a

; ~ > F * . = 2. ties OC Po

4 (aside. te ple a Sat oS = ae ee Sep las ee

fy 4 x a m * “~

pi a ae — fx 3 e2

Hy = ‘ -, a ae > e ei bw -e Be LF

fr 4

[- . ep ee ale eee

: ree . e 5 rm fs 2 €3 eS

Bett i he - ; 7 +24 7 a * “ae fA tte ~~ sy a

4 + -

iad

are

‘

i i 2 + ena . ea! ene ba 5 . pert}

f “U3 LNaNnc? Batese. bS2LAU: ORS 20: Seeeons

Hi!

at; phe gee ‘ ea 5 > om

a: %& y $s. MILES SIs tve. HS AS

4: é

7 t

‘US ee Ree YO yaar

a 3 - + SR SSS ie c. 29 22 4

ek 3

i :

> tele : 3 » ater — «“ ee 5

Be: -batiiedoe- gi Lgisssqaea

ha ; : a

os he : oe,

CERTIFICATE OF SERVICE

I, Thomas M. Haas, a member of the

Bar of the Supreme Court of the United

States, do hereby certify that I have

served three (3) copies of this Petition

for Writ of Certiorari on the Honorable

Charles A. Graddick, Attorney General of

the State of Alabama, by depositing same

in the United States Mail, properly

addressed and first class postage pre-

paid on this the _29 day of October,

1985.

eee re

i» “

— Sf) - a ae

> I se - 4 "ea ve “

ol ye A eae A fa Fe

Attorney for Petitioner

255 St. Francis St.

Mobile, Alabama 36602

205-432-0457

ia | béstnl edz to awete amocigat ats penn

a _ eek It. pads: Ysa yderxot Ps Pore

a oittset abay-te eadqos: (C)/eenda borat

i idszom0h sd2- ne Seatokooss ae. 230: Br

j 5 Tere) yzerxvessA gothbaye ,& ao Dem

‘" pee gnisieoqsb yd ,amadelé Th ete3€: 91

[ vimeqorq fish aegage betind eats

<y onsaeoq eeslo sexk? Stee: beesoxb!

;

i ;

I, yedo220 3 yeb:.@h eda wade no bd:

Ot EE ;

a o,

‘iy > a? 28

APPENDIX

26.

MOTION TO DISMISS INDICTMENT, DENIED

3/31/83; COMES THE STATE OF ALABAMA

BY ITS DISTRICT ATTORNEY, COMES THE

DEFENDANT ALSO IN HIS OWN PROPER PERSON

AND BY HIS ATTORNEY, AND SUBMITTED TO

THE COURT THE DEFENDANT'S MOTION TO

DISMISS INDICTMENT FILED IN THIS CAUSE ON

THE 10th DAY OF FEBRUARY, 1983, AND THE

COURT HAVING HEARD ARGUMENT OF COUNSEL ON

SAID MOTION, AND CONSIDERED AND UNDERSTOOD

THE SAME, IS OF THE OPINION THAT THE SAME

IS NOT WELL TAKEN AND SHOULD BE OVERRULED:

IT IS THEREFORE ORDERED AND ADJUDGED BY

THE COURT THAT SAID MOTION TO DISMISS IN-

DICTMENT BE AND THE SAME HEREBY IS OVER-

RULED AND DENIED.

27.

oo eS ee ey

— aS

vos

ioe |

THEMTOTW PPIMET 0 ir MOTTO

ei Oe Gn I Ae ee ay ape en aap

) ATAT? SH =eMOO ;,CAyIE\

; IMMVOTTA TOIRTETA

0 LMIO8L8 THAGHESE:

TIMEU2? GVA .YHMAOTTA @Ia Ye OF

| raund ST TAUOO wi

; reese Gby bile Mi @einwii

f ; i OD aIVL su

AA Gi

wi ce) i ‘

TTUM Le TAHT THUGQO ZL

a SaS5H IMAG SHYT GHA Sa THEMTOL

RIMS GHA GaTU

ree

ates tee ee ae en

AMENDED MOTION TO DISMISS INDICTMENT,

DENTED

3/31/83; COMES THE STATE OF ALABAMA BY

ITS DISTRICT ATTORNEY, COMES THE DEFEN-

DANT ALSO IN HIS OWN PROPER PERSON AND

BY HIS ATTORNEY, AND SUBMITTED TO THE

COURT THE DEFENDANT'S AMENDED MOTION TO

DISMISS INDICTMENT FILED IN THIS CAUSE

ON THE 3lst DAY MARCH, 1983, AND THE

COURT HAVING HEARD ARGUMENT OF COUNSEL ON

SAID MOTION, AND CONSIDERED AND UNDERSTOOD

THE SAME, IS OF THE OPINION THAT THE SAME

IS NOT WELL TAKEN AND SHOULD BE OVERRULED:

IT IS THEREFORE ORDERED AND ADJUDGED BY

THE COURT THAT SAID AMENDED MOTION TO

DISMISS INDICTMENT BE AND THE SAME HEREBY

IS OVERRULED AND DENIED.

28.

JUDGMENT

9/27/84; This day in open Court came the

State of Alabama by its District Attorney,

and the defendant in his own proper person

and with his attorney, and the defendant

in open court on this day a Indictment

for the offense of Trafficking in Cannibis,

and the trial of this case having been

regularly set for this day and trial by

jury having been waived by defendant, this

case is tried by the Court without the

intervention of a jury, and the Court

after hearing the evidence taken ore tenus,

renders judgment finding the defendant

guilty of Trafficking in Cannibis, as

charged in the Indictment. Pre-sentence

investigation ordered.

29.

ee a

= gee tend

i oz smay ary. ogo ak: yab ald

4 ,vearxoaaA gabayal 4 Pi emadatactennssad

Ok TS TAO SY: eo ett “2 scabos tab: ont bie

yiab sit Baie peantotd3e abt-istiw base

sues s kbesk ord web ght: ae steed Tete: co

* s aa

¢ a

‘ . ? + o - 4 -

CY Ape cK O° sits af od on

. by Pi

— 4 F t a 3 ¥Z i; i?

s P . . ;

- Ss a by vd rea 7 ik <<O Biss Viets § fed

- ’ ' aa " i? 2. cd "

=) Jo ht ww a4) Ge Ls 7 PA Aa wi, at ui be |

a : : onméran i a> eee ; “ge 9 0 |

; a, te 5 > 1 t & at , - ieVv Pe. eB te |

’

. - i ,

a , . ’ er. Ye wg» ot

gocebiva »sit SHETSSS yerrs

> } : « y hy a “

a 7% <4 < { J ‘ z an, ot 6448

~ - t a = > \ ~~ s ~, Sy « ~— | ° 7

aa ‘ , i HitsS had ais ee are 4 ¥- ~b *

eoreiipe~eid ,tpemso thal ece.cth begeeds

i ’

it beteabty. 26 od angiozevnt

SENTENCING

11/29/84; Came the State of Alabama by its

District Attorney, came the Defendant

also in his own proper person and by his

attorney, and defendant having been found

guilty of the offense of Trafficking in

Cannibis, and adjudged guilty of the

offense of Trafficking in Cannibis, being

asked by the Court if he had anything to

say why the judgment and sentence of the

law should not be passed upon him, replied

by his attorney, "Judge, we would just

point to the presentence investigation--

things in there, and the fact that this

man has not been in trouble before and

has a good reputation. And we would ask

the Court to take that into consideration."

It is therefore considered and adjudged

by the Court that the Defendant is guilty

of the offense of Trafficking in Cannibis,

as charged in the Indictment in this case

30.

ar en

os)-

3 ikaZ >,

ee” are ©

i ee ants

ston cy

ee oe

oan re

‘

——— se

—— ee oe

7 , 4 tml

| gijesvax

- + (

. ° nd Th -

3 £

’

x¢2 blpow se pee

“ i met bag

+ ees} MeIabs - baa b, osak 34

‘pe LisB ge?

\ 7 P

sidtoms> «4k soba te ‘ ae

cs brie th a

oe]

eo a a

a de epee

oes

and that the Defendant be and he is

hereby sentenced to Twelve (12) years

in the State Penitentiary and a fine

of $25,000.00. Defendant's appeal bond

set at $25,000.00.

31.

THE ALABAMA COURT OF CRIMINAL APPEALS

Montgomery, Alabama |

RE: CC 83-92

lst Div. 956 Baldwin Circuit Court

JOSEPH THOMAS HAFNER

Appellant

vs.

THE STATE

Appellee

Dear Sir: This is to advise you that on

APR 23 1985 the Court of Criminal Appeals

announced decision of:

affirmance )

) No opinion

in the above stated cause.

Yours truly,

MOLLIE JORDAN, CLERK

32.

COURT OF CRIMINAL APPEALS

State of Alabama

lst Div. 956 Baldwin Circuit Court

CC83-92

JOSEPH THOMAS HAFNER

Appellant

vs.

STATE OF ALABAMA

Appellee

You are hereby notified that on

July 2, 1985 the following indicated

action was taken in the above-styled

cause by the Court of Criminal Appeals

of Alabama:

XXX Application for rehearing overruled.

No opinion. Judgement not final, see

Rule 41, A.R.A.P.

XXX Rule 39(k) motion denied.

original signed

CLERE Mollie Jordan

COURT OF CRIMINAL APPEALS

OF ALABAMA

33.

THE STATE OF ALABAMA -JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

August 30, 1985 :

84-1084

EX PARTE: JOSEPH THOMAS HAFNER

PETITION FOR WRIT OF CERTIORARI

(RE: Joseph Thomas Hafner v. State)

CRIMINAL APPEALS 9/956

CERTIFICATE OF JUDGMENT

WRIT DENIED

The above cause having been duly sub-

mitted, IT IS CONSIDERED AND ORDERED that

the petition for writ of certiorari be

denied.

Costs taxed to petitioner.

TORBERT, CJ. - FAULKNER, ALMON, EMBRY &

ADAMS, JJ., CONCUR.

I, Robert G. Esdale, as Clerk of the

Supreme Court of Alabama do hereby certify

that the foregoing is a full, true and

correct copy of the instrument(s) herewith

set out as same arreas(s) of record in said

Court.

Witness my hand this 30th day of Aug.

85. original signed :

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.