# Petition for Writ of Certiorari — Weger v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1048%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 389 U.S. 1047 ## Text baie ac Lge 23 1967- 7 IN THE s ‘Supreme Court of the Unite State October Term, 1967 i ¥ ones CHESTER W. WEGER, Petitioner ' 7 ws. PEOPLE OF THE STATE OF, CALIFORNIA. Petition for a Writ of Certiorari to the District Court of Appeal, Second Appellate District, State of California. . potent -Auten-I-NEIMAN, ~~ 849 South Broadway, ~ Suite 412, Los Angeles, Calif. 90014, -~ % Winn, Frep OKRAND and ) LAURENCE SPERBER, : 257 South Spring Street, Los Angeles, Calif. 90012, Attorneys for Petitioner. ~ Parker“& Son, Inc., Law Printers, Los Angeles. 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Subversive Activities Control Bosse; ze * 382 USS. 70. ase: a ieee Bantam Books, Inc. v. ‘Silvan, 372. U. S, ae | Camara v. Municipal. Court, : ih Se oe ea Chapman_ v.-California, 386 SD siwsinne 7 - _ _: Gity of Seattle v. Drew, 423 P. 2d 522 ; ii fe v. Louisiana, 379. U.S. 536 iiitmadiadieeis 13, 14° ‘ Cregler, In re; 56 Cal. 2d 308, 363 P. 2d 305 ...:....15 Escobedo y. Illinois, 378 US. 478 , aw Fields v. Fairfield; 375 U.S. 248 | saline, BO | Freedman v. Maryland, 380 U.S. 51 . adseie 19 Garner v. Louisiana, 368 US 158 3c - mi ~ Garrity v. State of ‘New Jergey, ae US.) .. 7... Gideon v. Wainwright; 372 U.S. 335 ...... 12. - Gilbert v. California, 388-U.S. 263 -..ssssecceccceeeeeeee 12) Griffin v. California, 380 U.S. 609 2uteccsscclenienee 7 Griswold, v. Connecticut, 381 U.S. 479 ........... 9, 11 Huddleston, In‘re, 229 Cal. App. 2d 618, 40 Cal. Rptr. 581 i poo “EB - Lanzetta v. New Jersey, 306 tf. a) pacneoninamesSieg > Malloy v. Hogan, 378° U.S. a : 6 McFarland v.. American Sugar ‘Refining Coi, mM: US. 79° : , 16 _ Miranda v. Arizona, 384 US. 436 smeianty. Be 8, So i .: Morrison v. California, 291 US. ee sens | | oa People v. Bruno, 211 Cal. App. 2d lech ees ae af / A ere: TABLE OF AUTHORITIES CITED People v..Ridley, 63:Cal. 24 671 weemcvcnecemeennennrn 9 Peters v..New York, No. 74 inisciadcmasbesoniocbeict S "Russell v. United States, 306 F. 2d 402 icrcandaloeast Sibron v. New. York, No. 63 eee oe RR RN AREER PRI AC ALN IE se Sl - 4 -. ° — 3 P 2. No rehearing was sought in the court below. A. timely filed petition for hearing in the California Su- _preme Court was denied on, July 26, 1967. A copy of © the drder of denial [C. t 8] is attached hereto as | Appendix “C”, No extension of time was sought in this Court i in which to petition for a writ of certiorari. ‘ 3. The statutory provisions believed to confer’ on - this Court jurisdiction to review the judgment i in ques- — _ . tion by a writ of certiorari /are 28 U.S.C. 1257 (3) and —2101(c) and Rule 22(1) of.the Rules of this Court. - Question Before the Court. * Does Penal Code: Section 647(e), quoted above at | page 1, violate, on its face or as applied by the court below, the: ~ ; 1. Right against scif-iaceimination as ; guaranteed by the Fifth Amendment and made applicable to the States . a by the Fourteenth Amendment to the Constitution ; _ 2. The Due Process Clause. of the Fourteenth _ Amendment to the Constitution of the United States be- cause of vagueness and for the further reason that it places: upon the citizen the bueden of proving his i inno- cece * ) | 3. The iis of siebiiiia including the. righ to i lence, as guaranteed by the totality of the First, Third, | » Fourth, Fifth and Ninth Amendments to the ‘Constitu- tion of the United States and made applicable to the - States by the Fourteenth Amendment to the Constitu- tion of the United States | 4, The right to counsel as } Ae by the Sixth Amendment and made applicable’to the States - by the © Fourteenth Amendment to. the Constitution ‘of the United States. ‘Constitutional and Statutory biastahiile Involved. The pertinent provisions of the First, Fourth, Fifth | _ Sixth, Ninth and Fourteenth Amendments to the Con- __ stitution of the United States and the pertinent pro- visions of California Penal Code Section 647(e) (ef- — fective 1961, Cal. Stats. 1961, c. 560, P. 1672) are set forth i in ——— “—’, attached hereto. Statement of the Case. There are no factual “issues before the Court.’ The sole question is the constitutionality of California Penal Code Section 647(e). How Federal Questions, Are Presented. The complaint was filed against petitioner in the Mu- nicipal Court. of Pasadena ‘Judicial District, County of - Los Angeles, State of California on June 13, 1966 -[C. T. 3]. Thereafter, petitioner -(then defendant) filed a demurrer to the complaint contending ‘that the subject section denied to petitioner his right against — sélf-incrimination, his right to be represented by coun. - " sel, and due process of law, all as guaranteed by the ' Constitutions of the United States and the State of -Cali- fornia. [C. T. 12]. In addition, petitioner (then de- fendant) filed in the Municipal Court proceedings a re- ply brief in opposition to the brief of the City Prosecu- tor opposing the demurrer. Therein, in addition to the constitutional grounds described in the demurrer, peti- tioner contended that 647(e) violated his basic consti- tutional right of privacy [C. T. 13]. The demurrer: of petitioner was sustained by the judge of the Municipal - Court, but no opinion -was written [C. T. 4 and 5]. a en ey ee a * 6 OIE LLL EAA 1 LW ict por a The opinion of the Appellate Department of the Su- - perior Court held 647(e) to be unconstitutional as it -violated the Fourth and Fifth Amendments to the Con- stitution of the United States (Appx. B). The opin- . ion of the court below found the subject section to be constitutional and reached its decision solely by an ex- amination of Constitutional issues t C. T..1 and Awe. oe ‘REASONS FOR GRANTING THE WRIT AND ARGUMENT AMPLIFYING SAME. 1. This court has already indicated the constitutional gravity of the issues presented - by California Penal Code Section 647 (e) by the granting of certiorari in four cases which are presently pending before this Court this term, all of which present similar ..issues: - Peters v. New York, No. 74, Sibron v. New York, No. 63, Terry v. Ohio, No.. 67 and Wainwright v= ' City of New Orleans, No. 13. Peters, Sibron and Terry are concerned with the constitutionality of “stop and frisk” statutes. Wainwright is remarkably similar to the case at bar. 647(e), however, goes far beyond the aforementioned four cases in that the citizen must. affirmatively ‘ ‘account for his presence” after he is de-- tained initially or be convicted of a crime. Moreover, the subject case is basically a vagraricy case, While 647(e) does not carry a vagrancy label @ (as does the arrest in Wainwright) it is nothing more than a sophisticated version of that very concept. When stripped of its niceties, 647(e) permits an arrest and conviction when the citizen is doing no wrong. See Douglas, Vagrancy and Arrest on Suspicion, 70 Yale LJ. 1 (1960). The same reasons which persuaded this court to ioigaak certiorari in the aforementioned four cases also justify this: court’s granting the petition here. Additionally, - _ this case is even more egregious than any of the afore- ~ ‘mentioned four as it makes one a criminal for not af- firmatively: satisfying the police officer that his: “pres-. ence” is “accounted for”. For that and that alone, says 647(e), may he go to jail. 2. California Penal Code Section 647(e) violates the self-incrimination clause of the Fifth Amendment to the Constitution of the United States. The subject section compels the citizen to “account for his pres- ence” and thereby make a substantive statement con- cerning ‘his - activities of a potentially incriminatory _ nature, or, in the alternative, be convicted of, a crime. — - The crime for which he could’ be convicted is that of refusing to respond or, in effect, silence, ° Such a law » violates the Fifth Amendment to the Constitution of . _ ' the United: States in that it results in eompulsory séHf- " iticrimination. Malloy v. Hogan, 378 U.S. 1; Mi- randa v. Arizona, 384 U.S. 436; Escobedo Vv. Illi nots, 378 U.S. 478: This. “dual bind”. in. which ihe citizen ‘finds, himectt when faced with 647(e) is not aesituatiori which is ‘new to the Courts.: See Russell. v. United States, 306 F, 2d 402 (9th Cir.) and Albertson v. Subversive Activities Control Board, 382 U.S. :70. In both cases, © the subject law compelled the citizen to perform ah act ° which could result in self-incrimination; failure to com- ply resulted in conviction of a crime. In both cases, the balance was struck in favorsof the constitutional right and the law held to ‘be invalid. 647(e) places the _ Gndividual in the Albertson-Russell type position of hav- eee * criminals. Our govefnment is one of “clearly de- - fined laws,” rather than government: by the moment- to-moment opinions of a policeman on his beat. Cox v. Lousiana, cited supra. - ‘The construction by the court bene of the words-. — - “loiter” and “wander” is unconstitutionally vague. Pre- viously, the California courts have upheld the con- stitutionality of the word “loiter” in criminal statutes by construing it narrowly so that it related to criminal activity or intent. In re,Cregler, 56 Cal. 2d 308; 363 ~P. 2d 305 and In re Huddleston, 229 Cal. App. 2d - 618, 40 Cal. Rptr. 581. The opinion 6f the court below [Appx. A, p. 8 and C. T. 1, p. 11], has for the first . time, construed the word “loiter” (and “wander”) in such a manner that it bears no relationship whatsoever to criminal activity ‘but applies to one who “linger ( s) aimlessly or as if aimlessly in-or about a place: . .-. to move in a slow,. idle manner; make purposeless am in the course of a ‘trip, journey, errand, etc.” [Appx. A, _p. 7 and C. T. 1, pp. 9. and 10]. As California now construes “loiter”, it applies to every person in a . public place. Such an interpretation now makes the ° mere walking upon the street an element of a crime. For . that. reason alone, the statute should be held invalid. Territory of Hawaii v. Anduha, 48 F. 2d 171 (C.GA. 9, 1931). To hold otherwise would be to sanction the prosecution of wholly non-criminal conduct. See Thompson v. Louisville, 362 U.S. 199, Garner v. Louis- iana, 368 U.S. 157, and Fields v.. Fairfield, 375 U.S. ~ Penal Code Section 647(e) is also violative of due process of law under Speiser v. Randall, 357 U.S. 513. _ By the very terminology of the section, the-circum- stances are “suspicious”. Whether the interrogation of the detainee has reached the accusatory-stage or is still in the investigative phase, it cannot be gainsaid that both: the statute and the police by interrogating under it place the burden. upon the citizen of “clearing” him- self. If he accepts the oppertunity so presented, and the officers are satisfied, that is the end of the mat- ‘ter. (We leave aside consideration’ of the situation wherein the citizen’s accounting is not satisfactory to ? - —16— | the police and he has incriminated himself as to another crime. ) If, however, he does not accept the opportunity — and is silent, for not coming forward to overcome the suspicious circumstances—for not shouldering the burden of proving innocent—the statute imposes crim- inal sanctions. | This is precisely the evil at which this Court sivteck | ‘in .Spetser. There, a veteran who, or church which, : would not sign a statement that he or it did not ad- eas vocate the overthrow of the government by force or vio- lence or other unlawful means nor advocated the ‘sup- port of a foreign government in. the event of hostili- = | ties, was imposed with the. sanction of Joss of tax: exemption. This Court’ held that this violated due proc- ‘ess because it placed the burden of proof upon‘the citi- zen. The state had taken the position that the tax exemption was a privilege and. that to obtain it the taxpayer had the burden of proving his entitlement. ' In striking down the requirement, this Court recognized that the statement was concerned with matters which -‘. could be criminal. It quoted (pp. 523-524) from crim- p inal cases (¢.g., McFarland v. American Sugar Refin- ing Co., 241 U.S. 79, 86; Tot v. United States, 319 _» *' U.S. 463, 469; Morrison v. California, 291 °U.S. 82, . 88) to.the effect that the State. cannot put on the de- ” fendant the burden of proving his innocence, and also ‘ from civil cases (at p. 524) which struck down statutes which: unfairly shifted the burden of proof. , The statute at bar is subject to that precise disabil- ity. True, Speiser arose in a free speech context, while the present case arises in a. right of privacy context. But the constitutional rights involved are not dissim- “ilar, (Cf. Time, Inc. v. Hull, 385 US. 374): If, by Yy ORIG PE Te Ma UY See UF tt . 2 E $ . y cael silence, the citizen does not come forward under the circumstances, set forth’ in 647(e) and clear himself, he is guilty of a crime. As Speiser demonstrates, the due process clause will not tolerate such a statute... « | Conclusion. For the foregoing reasons, the petition for a writ 5 of certiorari should be granted. eur ' . ALLEN I. NEIMAN, A. L. Wir1n, FreD OKRAND and LAURENCE SPERBER, © Attorneys for Petitioner. - ~ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1048%3A1. Public record. Not legal advice.