# Petition for Writ of Certiorari — Hafner v. Alabama > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0991%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 474 U.S. 1033 ## Text 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 .\! 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 i. « i a ee aiesisany bas y aeadelé mds ‘bes ici oe. Te Ss ues pa Fah -G. 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? © ae LIST OF PARTIES The parties to this proceeding are Joseph Thomas Hafner, Petitioner, and the State of Alabama. iii. .. * Le) 2 ‘ 7 “ ‘' f . ey “4 . & hing vr ‘ * - b= . - 4 ; sald Ps Se One, 31 at ing 0 ’ . pe? ~* : - : ‘ : ‘ ? ai é 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 th sh a ped Aiea aa ll 20 20, 2 12 17 14 14 Saal a a oa ae eet aw it fae > : a e . = 7% t C 7 J > ¢ | ew * x * \ 33, Se iy ~ ¥ . I] . b wry Es esi ae vo ‘ - sco. aid T4a9qR r ¢ ony ce a? 4 a | =) wet . =a p4 — & ¢ so | } . ~ » of F. ‘5 ‘ i ah edie me ai ~~ y= es ‘ Bh West ,bd¢ BS a0 eo Fe £84 " or ne Be 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 26 U.S.C. © LBS) ccccececcccecece t 2 e b h. j = i ; ; ) 7) . = “4 3 ~~ @ ’ int ¢ Le | ae (Ei}S-£-02- 8° (24 er) omen Yo 4 ie eee ee ~ © op CAT TIAONTUS 30 aamame eas i aa , . Ot-$-65 2 S822) nendeth Yo. 108-508 B42NCL) send fait be a 48-508 © Ceter)s es yee so _ -_ » 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 ze a) he df An pry | er frien » «* ® * : ; Pe? ep mr) » * e's 4 ahd ik A : wr ’ ‘ ” x ; , jet v . — one - fs > : é ® S , c.f a : 4 a 4 % s . ‘iee r~ ~~ azar res \ ? t 5 af }trte o ? we rtiwvEw S ad Aline A EG a ON, hh tt ihe . } o . br sd Pa Pi i? SJ. ¥ - . ‘ wes ref ma ry 38 =. F i eee nae Meg y We. » Se ens a SE ACRES, 4 ORT ie cirs ; bie f ; . Hu BRE Ge By wi tUtsh 1 ee ‘ ‘i SSlIieg” 7 an ‘ AUS2288b YA SRATS See bake ners gaat a SHS S IBGE me: 5 eaelg. ees ~ | 98 o¢-oF @g6fef2 26 weet Pe i bast ies Bh sh el a SO anol Lil. 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. Je Be Fai ate 6 # rte piney & 93 | Saaies Set alu et CMA ts DARE Nahin antes te rd 2 pa elec anwieadt vila it Ba MON ag k RY eLinn SW Tas "(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 4. ae breqgeva to i @ 201 tvne> af ofw for ~ ae | ae. 21356 22403 to ~s . f ' ctr” oe ; 4 & “a ? ! ? = 3 Aes 6 Meee ba spelt baa es2ued-sheestt"’ “10d Soa anolelvorg es. 69 gaetdua’. TEs. 4 e bobiv YoOrg 4ejannlesed ah. iret bra sgnsaree A: ee ae “OD mses cals ol Fa :: writes ae Ae OM REE x 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.” | eee 3 xi vem yo . noigaderg mo 24nheetab Cexti eeteil ‘edd nisiebw:oent? « #B9¢ iiabrstoh eft aeet¢ onts bee get od ai . ora SMe ' m4 » s oe ‘ a , 4 4 , ” i; 'S Se ,.SSEPUORAZETIEM . Ditetot 26 noistere W8xq tO Suusdxim evi { i 24% 4 - 2a iQ 62%8 ) 2viave 3 tis ry tes ons to. Lie. ,sedt? , tmoxvYeteds- Sbetsas7x9 ots 30 boay. hosts izete edt-1o Srlao _~kerteg to.aldeqnant et cima saa tg melee 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 6. | r et oman ‘péGshe ett 1A. to “eeB72 =e 4 ee gael lt —— pw nnn 7 tn | ng eee i - a dee i ng ot pee he — =. ous . (2TOEY enietata Yo ened 06-Fisere = tne ay ae + eld” et J r By re ea if Py ale PSS tad mes e>: ; i fe a = i ae th to Jano) saesquE ona oo ro A iu 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 8. 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." 9. is o2 ipo teretaes pare Avia | ijoseee 8 efeyds es-sbar 1 $ ~ ««2 2. ‘ > 2 > ie <> 3 28a 609g 7 Lone ae susoa siz hae o 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, 10. as eds — alte . brosee arty: Ro noomiests - lsviese ade Se anti ace qu-toia betolen sfgtt ae eside eft Ff ere) oém | hor Baltes dee te fads bee ane Te ae, dal alll oe eels ee Gi Sah 2S i ‘BRE y Aad ae a $%6 tisag doo te ¢ tenaisigat xt oss YEO s IIS * ees ee ee ee m i} “ nd f oF | } \ ¢ ? | t Ps h * % > @ i on ee at 2 i) : Jews We is “F Pais ty tr ¢ iy ¢,, ve by ivi Link benendealen onary 4° Tenos 3 £2764 Setrneh staenm fsess |i fp Seek Sys curt ws >t ps aoe 3 ae ra Pos 7 » + 2 é ste kk WY oe. Biss 2.4) ges Gs Sg sas, TOoLF © Hi oa3..29. yoilesotivia £3 a OILS ie : bas. sloinev eff 76 Stuxis2 bne dota By | péfi2s7 do S Fanos? 38% gaiicrxeve 7933 i bis sonebhivs, e443. 35 agks sarbeas a} e623 hg 7 ‘ . 5 , een eyo at nolzoM 4 ala te admitted into evidence the marijuana seized from the container in Petitioner's vehicle. Ae 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. bite desert azk, died 96 meee 70) @ O77 vrisg fenmiseh Vv apseae eed 3% ia)? Pp f 5 t* ie © ’ ant . . / , c PB tOGsOO bio Ae i af tis, .,60¢ o Baia © eRe 32 5 ie - ~~ — fi rep ast ’ , nea>onn! 7 _. ee - « . P ° ry AGE 20 Vite «Vv OeaIeTe BILE tae Ts rr, * 4 ‘ it - ‘ ; BOL .#Of SEY BOS (ose i P [ i ‘ DS Mess fF . SCS ot f 233 #e3u3eate Lattleies yelisnase ri sarerh i) ois ft ayo seanies nage ettZ4 oe easnns, a. I —_—_ . rs ee, a ay “files, ae ie ~ k is ene 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 13. | ok niddnans Yo Rod 4 baw ol sJuseae isco ua oy ‘se b viobered? labo? iamdalé 983 nb ozadey ih an } i r 4 catw stuyjsce eldsunss al grtite2eSexd or ojulomes toa sew etuteietgel eifs afef ———— bee @tialish ton at - bre emyss eat its 3 vd ,cewieg vrevs sicens of Anvods. 22a) — 2 _—— — ee ete ie teaiine _ re oe ee Seer ss cat as at ad “ . pa ee ‘> t - tleesl stivsas@ adds paiva: bie ote (molSBRLido Das asrigiz 81 wanes ti @hidcolTias2s edd wod- wor .bevirdxs aadive- srzesece lity e20tk: hs - em be on ni grt; 15 4¢3ecs eiit porate ae. oa eee PT ee ee ee +e eer ons. aavone x aengene per | estate 012 pot: nae he } pe Able y Sr : Sha) "s 1 us . : 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 rf ,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 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 Ee ai) att bedexedaxxo2 pcan | P m1 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 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 +e 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) it (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. r ' | I ae a dt a an Inu Jearrew ht ae yt tnasaqqa, a ai ae a 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 > s he i? re ay cr’ i a J 4 e 2) | Ge 4 s 2? bo oy 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. ee 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 m > © mo t = en ; ~ > F * . = 2. ties OC Po 4 (aside. te ple a Sat oS = ae ee Sep las ee me i 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 2} are ‘ i i 2 + ena . ea! ene ba 5 . pert} f “U3 LNaNnc? Batese. bS2LAU: ORS 20: Seeeons ie Hi! at; phe gee ‘ ea 5 > om a: %& y $s. MILES SIs tve. HS AS Bi 4: é 7 t ‘US ee Ree YO yaar a 3 - + SR SSS ie c. 29 22 4 * ek 3 As 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. ad eee re i» “ — Sf) - a ae J > 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 y nt et fr it 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 a 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 i 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. a aw ee a = gee tend " iy 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 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% \ ~~ 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. ts i ar en os)- 2 ea 3 ikaZ >, ee” are © i ee ants 2 ston cy aw ee oe oan re CT ‘ ——— se 2 —— ee oe " 7 , 4 tml | gijesvax 4 , - + ( . ° nd Th - 3 £ ’ x¢2 blpow se pee “ i met bag + ees} MeIabs - baa b, osak 34 ‘pe LisB ge? aa y ¢ \ 7 P sidtoms> «4k soba te ‘ ae Pm cs brie th a | ia oe] bi 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 : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0991%3A1. Public record. Not legal advice.