Brief for the Respondent in Opposition — Canard v. California

TReREM Artie & U

IN THE SEP 25 199g

Supreme Court of the Unite Staseers cx

October Term 1968

No. 80°

EMMETT CANARAD, CyrIL Myers, PETER STAFFORD,

and GeorcE MILLER, ;

Petitioners,

VS.

STATE OF CALIFORNIA, Court OF APPEAL, SECOND ApP-

PELLATE District, , ,

Respondent.

On Petition for Writ of Certiorari to the Court of Appeal of

the State of California, Second Appellate District

BRIEF OF RESPONDENT IN OPPOSITION

2 Tuomas C. Lyncu,

Attorney General,

WitiaM E. James,

Assistant Attorney General,

RonaAtp M. Grorce,

Deputy Attorney General,

600 State Building,

217 West First Street,

Los Angeles, Calif. 90012,

Attorneys for Respondent.

Parker & Son, Inc, Law Printers,.Los Angeles. Phone MA. 6-9171.

- SUBJECT INDEX --...

Preliminary Statement ..

Oe ii

Questions. Presented ..2..................

Statement of the Case .......

Statement of Facts ....-..c-coicccoe-cccs---- soe ie

The Trial Court Did Not Err in Permitting

Cross-Examination of Petitioner Stafford as

to Testimony Given ” Him Before the Grand

Jury : a -17

A. This Court’s Ruling in Garrity v. New

Jersey, 385 U.S. 493, Should Not Be Ap-

plied Retroactively - me

B. Petitioner Stafford’s Testimony Before

the ah Jury Was Not -Given Under

Compulsian and Therefore Was Admissi-

ble Under the Rule of Garrity v. New Jer-

sery, 385 U.S. 493 - 24

(1) The Events nine Stafford’s Ap-

pearance Before the Grand Jury ........ 25

(2) The Applicability of Garrity v. New

Jersey, 385 U.S. 493, to Statements

That Were Neither Confessions Nor —

Admissions But Merely Exculpatory

Statements Used to Impeach the

Credibility of Petitioner Staf ford asa

Witness ; 36

a, Page

C. Assuming But Not Conceding Errer in

the Use at Trial of Petitioner Stafford’s

- Prior Testimony Before the Grand Jury,

Such Error Was Harmless, Beyond a Rea-

sonable Doubt Under pman v. Cali-

oh fornia, 386 U.S. 18, P. larly With Re-

a to the Other Petitioners ............ Saas 40

Sie ae .

Tr : :

The Detention and Search of. Petitioner~Stafford |

- Were Not Violative of the Fourth and Four- ~~~-—

teenth Amendments’ Proscription Against Un-

reasonable Searches and Seizures ...................... 41

See

The Trial Court Properly Refused to Declare a

Mistrial Sought on the Basis of Unfavorable

Newspaper and Television Publicity During

the Pendency of the Trial ................ jaaecnianinian 46

'. TV

The banitieition and Recording of Telephone

Conversations Made by Petitioner Stafford and

a Codefendant Did Not Violate Their Constitu-

tional Rights or the Federal Communications

AE <ccnsivuiitntptascaii siacdisebpasdaaaildidalabsaniamaiaaiaeaieaaanaedale 50

Petitioners’ Contention Disputing the Sufficiency J

of the Evidence Does Not Present a Substan-

7 tel Federal | Seaation sciclialiiatihiasiaiaetsassmanaaiven 56

VI ; .

The Trial Court Did Not Err in Excluding Evi- °

dence as to the Disposition of the Cases in

Which Bookmaking Arrests Were Made Dur-

ing the Investigation 5 in eens spideicinbniiai sai 58

Conclusion issapindetnaiia scsiaiipcael cimatiiindnaiaannaniaanneinibaaas 59

* iii

TABLE OF AUTHORITIES CITED

Cases . Page

Brown v. United States, 356 U.S. 148 ..............2....... 39

Chapman v. California, 386 U.S. 18 -...--------cs-sse+ss0+ 40

Cohen v. Hurley, BE ee Oe aciensecasnctneaninccctinal 19, 22

Davis v. United States, 328 U. “= peewee Leesa 44

DeStefano v. Woods, 392 U.S. 631 ...............--.---- 20, 23

Fahy v. Connecticut, 375 U.S. 85 -.......-----.-+-- siabchaeieleii 40

Fernandez v. Klinger, 346 F. 2d. 210, cert. den. 382

BE TO . ceticicicetninsnccaseaeatinlienicaianinniomalimadaens 56

~: ---..__-Frisbie v. Collins, 342 U.S. 519 FRR ae erence pibleiiils 42

Gardner si Broderick, 392 U.S. 273. viccenevsnsesneenee 33

Griffin v. California, 380 U.S. 609 ae

Hoffa v. United States, 385 U.S. 293 ...................++- 34

Irvin v. Doud, 366 U.S, 717 ..............-+--- se

Johnson v. New Jersey, 384 U.S. 719 ...........-...-- 20, 23

Jones v. United States, 362 U.S. 257 -2.......-----se0e-- 42

Katz v. United States, 389 U.S. Bik SOE 53

Lanza v. New York, 370°U.S. 139 ............--0-0--- 53, 54

Linkletter v. Walker, 381 U.S. 618 ............ 20, 21, 22, 23

Lopez v. United States, 373 U.S. 427 en

Malloy v. Hogan, 378 U.S. 1 .............--. 2, 19,21, 22, 50

Mapp v. Ohio, 367 U.S. 643 ........-.-.-c-c-e-csesereonesesessees 41

Massiah v. United States, 377 U.S. 201 56

Nardone v. United States, 308 U.S. 338 -..: i ae

Payne v. United States, 294 F. 2d 723, cert. den. 368

CB GD cecncccecicaptnreernicessesenesssosannestagusmenanentmenneens 35

People v. Apodaca,. 252 Cal. App. 2d 656, 60 Cal.

BROT, FBZ annceceececcncovocsancsntcorseoeannese a

sisal v. Brac, 73 Cal. hia 2d 629, 167 P. 2d 535 .. 49°

a

4 Page

People v. Canard, 287 A.C.A. 500, 65 Cal Rptr. 15

....4, 5, 18, 24, 25, 33, 37, 40, 44, 48, 50, 51, 53,57, 59

People v. Ditson, 57 Cal. 2d 415, 20 Cal. Rptr. 165 .. 35

People v. Fontaine, 237 Cal. App. 2d 320, 46 Cal.

Rptr. I I ties leninienicenteiiinn 55

People v. Genser, 250 as App. 2d 351, 58 Cal.

Retr. 290 2n..----scoeeeeeeeiteneceseeceseeescnsenennneanecenesensensees 39

People v. Gomez, 41 Cal. 2d 150, 258 P. 2d 825 ....:. 49

People v. Hughes, 203 Cal. App. 2d 598, 21 Cal.

Rptr. 668 . .. 54

. People v. Ing, 65 Cal. 2d 603, 422 P.. 2d a 56

~ People v. -Lambright, 61 Cal. 2d 482, 3S P. 2d 409,

eee Ce ee 49

People v. Morgan, 197 Cal.’ App. .2d 90, 16 Cal.

Rptr. 838, cert. den. 370 U.S. 965 .......----:------------ 54

+ People v. Sica, 112 Cal. App. 2d 574, 247 P. 2d 72,

I, I, SOME, SEI ccecciecsnssncpensummioguionngeaeennineess 52

People v. Tahl, 65. Cal. 2d 719, 423 P. 2d 246, cert.

BN Be I, UE sattrctenpriecenetinncasientine —

People v. Winston, 46 Cal. 2d 151, 293 P. 24 a 43

_ Sanitation Men v. Sanitation Comm’r, 392 U.S. 280

sing a ee ae 55

" Schlette + v. “People. a State of California, 284 F. 2d

827, cert..den: 366 U.S. 940 -....------n--n-ceeceeeeeeeseeees 56

Schwartz v. Texas, 344 U.S.A199- ..........----.-0----0eceees 52. |

Sheppard v. Maxwell, 384 U.S! 333 _..-----c--c-coosee-= 49

Simmons v. United States, 390 U.S. 377 ........----2-+--- 42

Smith v. United States, 324 F. 2d 879, cert. den. 377

Siete es ee OLS | 18, 19, 22

Stovall v. Denno, 388 U.S. 293 ...............20, 21,22 23

Stroble v. California, 343 U.S. 181 -2s.c--tecceeeneeenes 49

3

Page

_. Tehan v. Shott, 382 U.S. 406 -....--coooes++-+- 19, 20, 21, 22

’ Terry v. Olio, 392 U.S. 1 .x-nnciec-cecvenecsnsvornsiooososnneonee 44

_. United States v. Collins, 349 F. 2d 863, cert. den. .

SBS U.S, DED 2a nnnvaceeeennnenensnserovincrercenensncorecsusoepere 44

United States v: Rabinowitz, 339 U.S. 56 .........-..---- 43

Walder v. United States, 347 U.S. 62 -........-------+-0-+-- 39

_ Weiss v. United States, 308 U.S. 321 iemimenea. ae

Wilson v. United States, 221 U.S. 361 -.....-.---.---+--2- 44

Wong Sun v. United States, 371 U.S. 471 -....---..----- 34

: Statutes

California Penal Code, Sec. 67 secsoatiinnieapadecesnati 3, 4

California’ Penal Code, Sec. 68. ......---.-:--s-s+0+0: _

California Penal Code, Sec. 182 2......2...2-....--sss00e0-e+ i. ;

California Penal Code, Sec. 182.5 a

California Penal Code, OE I cet caauciantienl mon i

California Penal Code, Sec. 640 ........-.--c-s-cceeceeeeeee 52

California Penal Code, Sec.’ 653. ...........----- ieininsiiionenis 52

California Penal Code, Sec. 653(j) -....-.---s-:--+-+++ «we

California Penal Code, Sec. 995 0..2.........-.cc-secceeeeeees 3

United States Code, Title 28, Sec. 1257(3) ............ a

United States Code, Title 47, Sec. 605 ............2.------ 52.

United States Re encanstie Fourth Amendifenit

arcana 2, 21, 41, 44, 50

United States Constitution Fifth Amendment ........

sducsasibciecaievelaedaadimammeaiaidian ...19, 22, 30

United States Constitution, Sixth Anion ith, FO

Vates States Constitution, Fourteenth Amendment

NE ATCO nee rT Pre seseeeeee-k, 19, 22, 41, 44

IN THE

Supreme Court of the United States

‘aa Term 1968

No. 80 —

EMMETT CANARAD, CyRIL Myers, PETER SraFForD,

and GEORGE MILLER,

Petitioners,

US.

, STATE oF CALIFORNIA, CourT OF APPEAL, SECOND AP-

PELLATE DISTRICT, .

oe Respondent.

On Petition for Writ of Certiorari to the Court of Appeal of

_ the Stete-of California, Second Appellate District

BRIEF OF RESPONDENT IN ached

‘Dadiaienss Statement

- Petitioners seek a writ of cértiorari from. nen Court

- to the California Court of Appeal, Second Appellate

: District, Division Four, to review its‘ decision affirm- —

_ing’ judgments of conviction of conspiracy. The opinion

of the Court of Appeal, filed December 26, 1967, is

reported at 257° A.C.A. 500 (1967) [65 Cal. Rptr.

15] (hearing denied by the California Supreme Court).

_ The Petition for Writ of Certiorari was docketed on. —.

May 9, 1968. This Brief in’ Opposition is filed pursuant

to the Court’s request contained in its letter of —

12, 1968.

Dette ens at, en ee ee Oe “— ¥ > dns -" ——

oe

J urisdiction

Y)

Jtirisdiction in the present Petition: for Writ of Cer-

_ tiorari is. invokéd presumably acta to Title 28,

~ United States Code, section 1257(3).

_Questions Presented

By. letter dated ‘August 12; 1968, the Count requested

this Brief in Opposition without specifying any par-

ticular. issue. The following issues are raised by the

Petition: |

we

-1.- Did the trial court err in permitting cross-exam- ©

ination of petitioner Peter Stafford, a police officer, as’

to testimony given by him, allegedly under compulsion,

before the Grand Jury? : ,

2. Was -petitioner Stafford denied ie right to a 7

fair trial and due process of law, in violation of the ©

‘Fourth and Fourteenth Amendments to the United

States Constitution, by reason of his detention, the al-.

' legedly unlawful search of his person, and the use of

the fruits of such search at the trial?

- 3.° Did the trial court err in denying a mistrial |

sought on the basis of unfavorable newspaper and tele-

vision publicity during the pendency of the trial?

4. Did the interception of telephone conversations

made by petitioner Stafford and a co-defendant, and «

the use in evidefice of recordings 6f the conversations,

violate the Fourth, Fifth, and Sixth Amendments to

the United States Constitution and the . Federal Com-

munications Act?

5. Was the evidence insufficient. to sustain’ the

judgments of guilty as to any,of the petitioners?

EE eae

‘%

°

6. Did the trial court err in excluding evidence as

to the disposition of the cases in which bookmaking. ar-

rests were made during the investigation in question?

Statement.of the Case

In an indictment and an amended indictment filed

by the Grand Jury of Los Angeles County, petitioner

- Peter E. Stafford and Henry DeMaddalena, Los An-

‘geles Police Department officers, and Emmett Canard,

Cyril Myers, George -Miller, and Maury Adler were

| charged in Count I with the felony of conspiracy to of-

fer and give bribes to executive officers of the State

of California in violation of California Penal Code —

section 67, to ask for and. receive bribes for officers,

employees, and appointees of the City of Los Angeles

in violation of California Penal Code section 68, to

engage. in bookmaking in violation of California Penal

Code section 337a, and to. obstruct justice and the due

administration of the Jaws pertaining to. bookmaking

and bribery in violation of California Penal Code sec-

tion 182.5. Seven overt acts were alleged.. (Clerk’ S

Transcript [hereinafter referred to as baat Tr: ] pp.. 1-2,

6-7.) |

In Counts II and IIT, Henry De Sisdistion was

charged with the felony of offering and giving a bribe

to an executive officer of the State of California, Jo- .

“ seph Gunn, a Los Angeles Police Department. officer,

with the intent to influence Gunn’s actions Gn the per-

formance of his duties as a member of the Los An-

geles Police Department, in violation of California Penal

Code section 67. (Cl. Tr. pp. 3-4, 8-9.)

The motions of each defendant pursuant to Califor-

‘nia. Penal Code section 995 to set aside the indictment

a

were » denied, and the defefidants pleaded “Not Guilty.” -

(CL Tr. p. 17.) Petitioner Stafford’s motion to sup-

press evidence was denied. (C1. Tr. p. 42), and motions

for mistrial were denied. (Cl. Tr..pp. 51, 57.) ° :

After a jury trial petitioners were found guilty as

changed, and the jury returneda special verdict find-

ing that the objects of the conspiracy were those charged

in the indictment. (Cl. Tr. pp. 142-43.) Motions for

new trial were made by petitioners and were denied

by the trial court. (Cl. Tr. pp. 193-97.) -

As to petitioner Stafford, probation was denied and

he was séntenced to state” prison for the term pre-

scribed by law, which is one to fourteen years. (See _

Cal. Pen. Code §§ 67, 68, 182.) (C1. Tr. p. 203.) As.

to” petitioner Canard, proceedings were suspended. and

probation was granted for five years on condition that

_. he spend ninety days in county jail and pay a fine of

$1,000 plus penalty assessment. (Cl. Tr. p: 202.) As —

to petitioner Myers, proceedings were suspended and

- probation was granted ‘for five years on condition that

he spend six months in county jail-and.pay a fine of

$5,000 plus penalty assessment. (Cl. Tr. p. 201.) As

to petitioner Miller,- proceedings were suspended and

probation was granted for five years on condition that

he spend. sixty days in county jail and pay a fine of

- $2,500 plus penalty assessment. (Cl. Tr. p. 199).

Petitioners filed timely notices of appeal. (ef Tr. :

"pp. 204, 206-07, 210:) As to each, bail on appeal w

set and stay of execution of the judgment was grant

pending. appeal. (Cl. Tr. pp. 199, 201-03.) Their con-

victions were affirmed by the Court of Appeal. People —

v. Candrd, 257 A.C.A..500 (1967) [65 Cal. Rptr. 15].

~

ere Se

_ Timely petition for hearing in the California Supreme

__. Court was filed and was denied on Februgty 19, 1968. .

- 68 A.C. #8, Minutes, p. 3.. A petition ta recall the re-

mittitur was denied by the Court of Appeal. Petition- .

ers’ applications to recall the remittitur and: to stay

-. execution of judgment: were denied by the. California

Supreme Court on May 6, 1968. The trial court, the

Superior Court of California in and for the County of

- Los Angeles, has granted a stay of execution to permit

«

the timely filing of the aoe Petition for wrt of as

Certiorari.

‘- Statement of Facts | eek ae

The evidence is accurately summarized in the opinion —

of the. Court of Appeal, and the following summary

of the facts is taken from that opinion. See People v.

Canard, 257 A.C.A. 500 (1967) [65 Cal. Rptr. 15].

Pertinent portions of the record are set out in more de-

tail in the arguments.

“Defendaagts Stafford aiid De Maddaleria were

members of’ the Los Angeles Police Department. |

. Stafford was a supervising sergeant assigned ‘to

the bookmaking detail of the Central Vicé Divi- ..

sion. He was an acknowledged expert in bookmak- .

ing law enforcement. Late in™1963, upon the rec-

ommendation of Stafford, Officer De Maddalena

was. transferred to the Central Vice bookmaking

detail to work under Stafford. On February 1,

1964, De Maddalena and Officer Joseph Gunn

were assigned as partners to work the West Los

‘Angeles area.” 257 A.C.A: at 504 [65 Cal. Rptr.

at is}... ~*

“On February 15, Gunn and De Maddalena

were on an assignment at the Kismet Bar, when

/

De Maddalena stated, ‘Here’s some money for

you.’ He handed: Gunn a $50 bill and told him .

‘It’s for your New York vacation!’ Gunn asked

what he had to do for the money and De Mad-

dalena said, ‘You won’t have to do anything. You °

won’t know anything about anything. All you

have to do.is get your money from me. ‘This con-

cerns something that is out_of our district and we

can go ahead and make our sates every month

and it won’t be any concern to us.’

_ “After leaving De Maddalena, Gunn went di-

rectly to Lieutenant Wilson, the acting division

_ commander, and told him what had transpired. At

a meeting held on February 17, with Captain Nel-

son (the administrative vice-commander) and Cap-

tain Mills (the intertial affairs commander) both

in attendancé; Gunn wa

‘with De Maddalena in ordér to find out all the

officers and criminal elements involved. He was to —

report what he found out tq Captain Mills. |

- “The. next title Gunn sdw De Maddalena was

on February 18: De Maddalena told him he would

be paid $200 once a month. On February 20, out-’

side the Clown Town Bar, De Maddalena, then in

a state of intoxication, showed Gunn the last page

of his personal notebook. It contained letters and

‘numerals. He told Gunn it was. a Xgde. and rep-

resented the phone numbers for 17 ‘front and back ©

offices’ for Cyril Myers, the biggest —- book-

maker in Los Angeles.

“‘Front offices’ and ‘back offices’ are terms

used to describe places where illegal bets are re-

ceived and recorded ‘by ay ge A froht of-

ee

o

~~

instructed to go along.

“2

in by bettors and temporarily records them on

objects which are ‘quickly destructible. The back

office is the place where the bets are thereafter

permanently. recorded, usually on pads called bet--

ting markers. Periodically, the back office clerk

telephones the front office clerk, and the latter

relays the bets received and then destroys his Tec- .

ord.

“After showing Coat * his oiled De Mad?

dalena stated that. Gunn’s job would be. te peri-

odically check ‘the telephone board’ at Adminigtra-

tive’ Vice.” 257 A.C.A. at 505. [65 Cal. ha i at

18-19]... | ,

' “When an-Administsative Vice officer wants

the address for ‘a telephone number of a suspected

bookmaking establishment, he writes the number

on a clipboard referred to as ‘the telephone board.’

It is kept by an employee in the administrative’

section of the department. By calling the intelli-

gence division (who would in turn contact the tele-

——phone company), the employee secures ‘the ad-

dress of the telephone for the investigating of-

ficer.” 257 A.C.A. at 505-06 [65-Cal. Rptr. at

eS ;

“De Maddalena told ieee: that he shod bring ;

the telephone numbers he got off the telephone

board to him to check against the numbers in his

notebook. If they matched one of the numbers of

Cyril Myers, he would warn him about the impend-

ing investigation. | a

“On February 22, De Maddalena told Gunn that. -

the payoff would be on the 15th of the month.

,

fice is staffed by a clerk who, takes. bets phoned

He still, on Ses 26, that Sergeant Stas

ford was’ part of the deal. The next day he said

that Canard, ‘of the Crown Hill organization at

Third and Lucas Streets, and some other book-

‘makers were also ifivolved.

“On February 27, De Maddalena said he had

to attend a meeting in Pasaderia with Myers and

that Stafford would probably. be there. Two days

later he told Gunn about having gone to the meet-

ing. He said that Stafford, Myers and. Maury

Adler, who managed Myer’s [sic] dress shop at

Wilshire and.Oxford, were at the meeting; Myers

told ‘them that he had changed his phone numbers;

_ Myers also agreed to pay them $200 a month.

- De Maddalena further stated that he had men-

tioned Gunn’s name at the meeting.

‘“On March 4 De Maddalena told Gunn that

‘five bookmakers, including Myers and Canard, were

paying them off; Pete Stafford had only about

four months to go in Central Vice; when he fin-

ished his tour of duty, he and Gunn would be the.

bosses of the operation; Stafford was picking up .

all the money and ‘making all the payoffs; be- —

cause Stafford had numerous ways ‘to cut the pot,’

he couldn’t afford to give them more than $200

each; Stafford himself cleared about $700 or —

a month.

“On the same date, De Maddalena instructed

Gunn to copy down certain telephone numbers.

He gave Gunn, 16 numbers. Some, he said to put

under Crown Hill, including DU 9-0888. Some, he

told Gunn to put under Cyril Myers name, includ-

ing a back office number, PL 4-2261 and a front

=

<e

| | : setlfein

office number, RE 3-4745. Madison 6-4572 was

to be put under the name George Miller. Gunn was

_also give Myers’ and Staf ford’s home numbers

arid Adler’s numbers at Myers’ dress shop. De

Maddalena said that, if any of the numbers came ©

up and he was not around, Gunn was to call ‘Cy,

Maury or Pete’ and warn them. To identify him-

self when he called, he was instriftted to say. ‘this.

is Mr.* Harris ‘calling.’” 257 A.C.A. at. 506. [65

‘Cal. Rptr. at 19-20]. ,

“On March 9, De Maddalena told Gunn ie was:

going ‘ta see George Miller ; he would get some

money from Miller for protecting a Barboudi game>

Miller was going to open-up. On March 11, Gunn

was told by De Maddalena that he planned to see

Stafford on Sunday to pick up their money..

“Gunn reported everything De Maddalena had ;

- told him to -his superiors. On March 12, following

a plan set up by them, Gunn went at 11:15 a.m.

to Administrative Vice and. picked up two phone —

numbers from Lt. Wilson. They were numbers for

a back office and, a front office | listed to Cyril?

. Myers. The- front office ‘number ‘was RE 3-4745/°

He immediately went down to the Internal ‘Affairs

Division and from there dialed Pete: Stafford’s

telephone extension. . . .” 257 A.C.A. at/507 [65

' Cal. Rptr. i: ae OF see es

. A conversation took place which is set’ forth 3 in 257

A.C.A. at pages 507-08 [65 Cal. ‘Rptr. at 20].

“At 11:21 a.m. Stafford whs. observed ‘leaving

the Central Vice office. He went to the lobby of

the police building “~ entered a acer telephone

booth.

4

y.

+a

‘“On the morning: of; March 12 Sergeant Saf-

ford (not tobe confused with defendant: Staf- -

ford) had: been instructed by. Lt. ‘Wilson to place

_-Apartment 9 at 12036 South Vermont Avenue

ander observation. Saf ford had received the phone

S38 number PL 4-2261 in connection with that: ad-

dress. At 11:45:a.m. he observed a man carrying

--a bundle leave ‘the apartrhent.

“The man was Wayne Galligan. ae: was oper-

ating 2 a back office from that location. He had, re-

ceived a telephone call. telling him to leave.

“In Fibeully and March, Canard and a woman .

_ known as Michelle Parks were staying: in Apart-

ment 5, at 250 South Reno Street. The telephone

number of their apartment was DU 9-0888. At:

1 a.m. on March 13, pursuant to instructions from

Lt. Wilson, Sergeant Saf ford went to the Reno

Street apartment driving an undercover police, car.

It had been’ assigned to him since August 1963.

' The license number was NZK002. As he entered

the hallway. of the apartment, building, he observed _

' Michelle Parks. She approached the door of Apart-

ment 5, turned and looked at him, and then en-

tered: the apartment. Safford’ left . the building,

circled the block on foot and then returned to his

car. After: driving a few blocks, he noticed a ve-

hicle without lights following him, When it pulled |

over and parked, he turned and drove past it. |

Michelle Parks was standing near the car.” 257—

A.C.A. at 508 [65 Cal. Rptr. at 20-21]...

~ Later that same morning petitioner “Stafford made

‘two telephone calls from the office of Central Vice.

—li—

These conversations of Stafford’s were introduced in’

evidence indicating that he had. made inquiry ‘with the

Department of Motor ‘Vehicles and the vehicle dis-

patcher office of the Los. Angeles. Police Department .

regarding the police vehicle seen: in. the vicinity of —

- Canard’s home. 257 A.C. A. at 509-10 [65 Cal. Rptr.

’ at 21-22].

“On March 15, ‘Stafford and ‘De Maddalena

were observed conversing at°a car wash in De

~ Maddalena’s car. The next aie Maddalena gave |

Gunn two $100 bills. :

“Pursuant to instructions from their ‘superiors,

on March 20 at 8:30 a.m., Lt. Hill, Sergeant Judd

-and.two other officers, approached defendant Staf-

ford after he dropped his son off at school. He

was driving a police vehicle. He was told he was |

assigned. to Lt. Hill for the day; that he was the

S subject of an investigation. They picked up his

notebooks, which were lying on the seat of the car,

_ and drove him to a motel where he was starched

and then held incommuhicado for the next few °

hours. »

“At 10 am. ee Wilson sent. 75 policepén out

to the vicinity. of the suspected front and back

offices, the addresses of which their investigation

had uncovered. Those sent to.the back offices were

instructed that, after receiving a radio signal at |

about 11:30 a.m., they were to arrest anyone who :

left the hceotiaie. The officers going to the front ©

offices were told to attempt to ‘stiff-in’ (to place) ~

> a wager over the telephone. _ ,

. “The officers arrested Canard as he left Apart-,

ment 5 at the ‘Reno Street apartment building.

Sonn Seoweiae h Be DARD A aa Staal PID Ad BETO Tey AST TE RR TEN 6 ip BR gh SRS ANIM SSE TA ny ie tape t=

abe:

They found ere a owe shéets,’ ana pads =

and two adding machines in the apartment. The .

. -phone number there—DU 9-0888—was ‘in Staf- |

ford’s notebook under Canard’s name. It was also

- in De Maddalena’ s notebook. 3

“In all; the investigation undertaken that diy a

revealed evidence of .bookmaking at 10 locations

the telephone numbers of which both De Mad-

dalena and Stafford had in their notebooks: At *

one front office the officers were able to ‘stiff-in’

-. abet.” 257 A.C.A. at.510 [65 Cal. Rptr. at 22].

_ Around 11:30 a.m. while the field investigation of —

| March 20 was still in progress, Officer Gunn called

| a Myers and Adler and, using the Harris code, informed —

them that ‘their back. office would be hit. 257 A.C.A,

at 510-11 [65 Cal. Rptr. at 22]. These conversations

are set forth in 257 ACA, at. 514-14 16s Cal. Rptr.

at 22-24]. - ce

“De Maddalena testified that, shortly after he

transferred to- Central Vice, Stafford gave him —

- $100, saying ‘this iad from. some people that are

taking care of us.’ Tommy Canard’s name was’.

mentioned.: When he went. to Administrative Vice .

- . in January -1964, Stafford told ‘him he would. be

~ paid for protecting Canard, Cyril Myers and others;

by watching the Administrative Vice telephone

_ board. Stafford gave him the numbers to be pro-

tected and he’ put: them orf the last’ page of his

notebook. He received $200 from “Stafford for

performing this service. The $50 he gave to Gunn ~

was given to him by. Stafford with specific in-

structions to give ‘it to Gunn. In: February 1964,

he met with Stafford, Myers and Adler at the

- named Dori. A secretary handed him the check - _.

and then turned to take a telephone call. When she

came back*to Miller, she saw that the check had ©.

: a

Westward Ho Paeennee ‘in Passion: At this

meeting ‘they agreed to use ‘Mr. ‘Harris’ as a code

name. Gunn was given the $200 for. ‘going along

with the play.’ He received the money from Staf- _

ford at an Arcadia car wash. In February or

March, Stafford told him that George Miller was —

. opening a gambling operation in the downtown

area and wouldalso pay for information.” 257 F

7 A.C.A. at 514 [65 Cal. Rptr. at 24-25].

“One of the front offices hit by the police on .

- -March 20 was the Nelson Jewelry Company, ‘lo-

cafed in room 1106 at 215 West. Fifth Street.

Patricia Locricchio was taking and r srding bets

‘from. that location. Their phone number appeared

in Stafford’s and De Maddalena’s books. In’ Feb-

ruary and March the rent for room 1106 was paid

by a check drawn on the Guardian Bank. Ann

Lieber, an employee of the landlord of room 1} isk 3

received the check. She put the number: 11

“one corner and deposited it. On April 20 be i

"Miller went to the Guardian Bank and asked. to’

see the check, giving the date, ‘drawer and its -

amount. He said -he wanted to see it for a friend

been written over and the number 1106 had been

erased. Miller said ‘the handwriting wouldn’t be

the ‘same on this one.as it was on this—on this |

now.as it was in its original form.’

~ “Stafford testified, denying. any involvement in.

-_. the conspiracy alleged. As pary of his job, it was

his practice to ~— the Phage numbers. of sus- .

entities

pected bookmakers in his notebook. Many of the

numbers were supplied to him by informers. He -

and De Maddalena met Adler and Myers simply

by chance at the Westward Ho Restaurant in

February 1964, and were invited to dinner by them.

They did not discuss bookmaking. He was ac-

quainted with Myers before that time and knew

‘he was a gambler, On March 16, when he was at

the car wash, he and De Maddalena were discussing |

_ De Maddalena’s family and health problems. He

did not give De Maddalena any money nor did he

~ feceive any money from any. of the other code-—

. fendants.

“Stafford remembered receiving the teléphone

call from Gunn on March 12. At the time he

thought Gunn wanted to get hold of De Maddalena

but that he was double talking because he was

talking in front of a superior. He thought the

_ phone number mentioned by Gunn was where Gunn

thought De Maddalena might be reached. He went

to a phone booth to call the Lake Club which De

Maddalena frequented. He used the public phone

because personal calls are not permitted from the

office. He talked with Ralph Dark who said De

. Maddalena was not there.” 257 A.C.A. at 515 [65

Cal. Rptr. at 25]. " e

“Stafford further testified that on March 13

he found a mug book with a note attached, ‘Possi-

bly came out of NZK 002, a 1962 blue Ford.’ He

did not know -where it belonged so he tried Motor

Vehicles.. When ‘he later called the motor pool to

inquire about a. car he had used a few days earlier,

Prone i a a i nie aan een,

| |

he gave the above license number by iniistake.”

257 A.C.A, at 515-16 [65 Cal. Rptr. at 25]. °

“In his testimony Stafford stated that he knew

' Miller. He was reputed to be a gambler. He some-

‘times got information from him. Miller had once

published ‘Post and Paddock’ which contained tips

on’ ag He also knew Canard, who was a

barténder ‘and small time gambler. Canard also

gave him information. | ;

“Of the notation ‘Phone Cy’ fount 1 in his note-

book, Stafford testified that the Cy referred to

- an informer named Cyzetk. His notebook entry

‘make meet with Cy, Maury, Hank’ referred to

Gordon Jones (the Cy being G. J.) Maury Riss-

man and Offiter Hank Weldon.

“Adler testified, acknowledging that he ” My-

ers had dinner at the Westward Ho with Stafford —

and De Maddalena. According to Adler they met

by chance and did not discuss gambling. He knew

his employer Myers was a gambler. Concerning

the March 20th telephone” call he had received,

Adler stated that he did not understand what-the

caller was talking about, ‘so: he just listened’ at-

tempting to recognize the voice. There were two

offices over the dress shop. One was referred to as

a back office. It had no connection however with

bookmaking. He thought the caller might be a rob-

ber. He had been a robbery victim twice in the

past. |

“In his testimony Myers stated that,@when he

received the call on March 20, he was suspicious

and just tried to keep the person talking.

=~

“Miller testified that he knew plenty of book-

makers. He gave Stafford the numbers of several

of them to keep him from bothering the customers

at his fruit company. He ‘had no connection with

room 1106 at 215 West Sth Street. He had gone

to the Guardian Bank on April 20 to do a favor

.for a friend named Dominic, a reputed bookmaker,

who told him he bought a money order there and

wanted it back. When the woman at the bank re-

fused to let him have’ it, he. did a ‘foolish thing,’

writing over it. He did not, however, erase the

number ‘1106’ on the check. -

“Canard did not testify.” 257 A.C.A. at 516—

[65 Cal. Rptr. at 25-26].

a er aa tr i an sions enone eniemibets

_—, a

ARGUMENT

a= | |

THE TRIAL COURT DID NOT ERR IN PERMITTING

CROSS-EXAMINATION OF PETITIONER STAF-

FORD AS TO TESTIMONY GIVEN BY HIM BE-

FORE THE GRAND JURY ;

Petitioners claim that petitioner Peter Stafford, a

police officer employed by the City of Los Angeles,

was improperly cross-examined, over defense objection,

as to his prior testimony before the Grand Jury of Los

Angeles County.

Petitioners base their contention that this prior tes-

timony was given under compulsion upon evidence that

(1) Stafford had previously been taken to a motel room

without advice as to his constitutional rights, had been

ordered to remove his clothes and was searched (in-

cluding his rectunr), and had been interrogated and held

incommunicado for several hours; (2) Stafford had

_ been subpoenaed to testify before the Grand Jury and

had been told that he would be dismissed from his

position as a police officer if the claimed the privilege

against self-incrimination. (Petition, p. 10.)

'.. Petitioners rely almost exclusively upon this Court’s

recent decision in Garrity v. New Jersey, 385 U.S. 493.

A. This Court’s Ruling in Garrity v. New. Jersey,

385 U.S. 493, Should Not Be, — Ret-

roactively-

The threshold issue presented by petitioners’ conten-

tion is whether the principles of the Garrity case, which

was decided on January 16, 1967, should be applied

retroactively to the present case.

—18—

- In affirming petitioners’ convictions, the Court of

‘ol Appeal. expressly reserved decision as to this issue and

| ge

plied has not yet been decided by the Supreme

Court of this state. We need not decide it here...”

People v. Canard, supra, 257 A.C.A. 500, 524

* (1967) [65 Cal. Rptr. 15, 31]. ‘ |

The California Supreme Court has’ not yet ruled

whether Garrity is to be given: retroactive “re or

‘prospective application only.

The events which form the basis of petitioners’ con-

spiracy convictions: transpired in February and March

of 1964. (Cl. Tr.. pp. 6-7.) According to Stafford’s tes-

timony at the trial, his. appearance before the. Grand

Jury was on April 22, 1964. (Reporter’s.. Transcript

_ [hereinafter referred to as Rep. Tr.] p. 2308.) Peti-

tioners’ trial,took place in April-and- May of 1965

. Whether or not that decision will ‘be sO ap- —

—(Rep. Tr. p. A-2); and the Garrity case was decided '

during the pendency of petitioners’ appeal before the

_ Court of Appeal. People v. Canard, supra, 257 A. C.A.

. 500, 522 (1967) [65 Cal. Rptr. 15, 29-30].

In Garrity v. New Jersey, supra, 385 U.S. 493,

500, this Court held that “the protection of the in-

dividual: under the Fourteenth Amendment against co-

erced statements prohibits use in subsequent criminal

proceedings of statements obtained under threat of re-

moval from office, and that it extends to all; whether

they are policemen or other members of our body pol-

itic.” In the companion case of Spevack v. Klein, 385

U.S. 511, relied upon by the Court in Garrity (385

U.S: at 497), the Court held that an attorney could

not be disbarred because he invoked his privilege against

self-incrimination in a proceeding to discipline him from

professional misconduct.

Spevack squarely overruled the case of Cohen -v.

. Hurley, 366 U.S. 117. The-Cohen case, decided in

1961, was “practically on all fours” with Spevack but

had led the Court to the opposite conclusion, mainly

because Cohen antedated this Court’s holding in Malloy

v. Hogan, 378 U.S. 1, that the self-incrimination clause

of the Fifth Amendment was ‘applicable to the states

_by reason of the Fourteenth Amendment. S pevack v.

Klein, supra at Pp. ‘513. °

Spevack and Garrity are based largely: upon the

principles of Malloy v. Hogan, sited and Griffin v.

Califorma, 380 U.S. 609..

See Garrity v. New Jersey, supra, 385 U. S.

493, 497;

Spevack v. Klein, supra, 385 U.S. 511, 514-15.

Malloy was decided nearly two months after Staf-

ford’s disputed appearance before the Grand Jury. Grif-

fin, which was decided on ‘April 28, 1965,-during the

course of the trial (CI. Tr. p. 54), has been held not

to apply retrospectively. Tehan v. Shott, 382 U.S. 406,

419,

This Court has set forth the following considerations

that affect the judgment whether a case reversing prior

doctrines in the area of criminal law should be applied

only prospectively:

» (a). the purpose to be served ‘by the new

(tanteids, (b) the extent of the reliance by law en-

forcement authorities on the old standards, and

0

. (c) the effect on the administration of justice of

-a retroactive application of the new standards... .”

Stovall v. Denno, 388 U. S. 293, 297.

+When these criteria are applied to the doctrine of the |

Garrity case, that the prosecution may not use at trial:

the statements of a police officer who has been advised

‘that if he refuses to answer questions which might

incriminate_him he will be subject to removal. from |

@ his position (385 U.S. at pp. 494-95), it is readily ap-

parent that the considerations which-in the past have led

_. this Court to limit the applicability of new rules of

" criminal procedure to future cases have equal force in

the present situation. —

_ See DeStefano v. Woods, 392 U.S. 631;

Stovall v. Denno, supra, 388 U.S. 293 ;

Johnson v. New Jersey, 384 U.S. 719;

Tehan v. Shott, supra, 382 U.S. 406;

Linkletter v. Walker, 381 U.S. 618.

These considerations all militate against giving ret-

roactive application to the doctrine announced in Gar-

rity.

ay T]he purpose to be served by the new standards”

(388 U.S. at p. 297) will be fully accomplished by

prospective application. ‘The Court’s .stated purpose in

Garrity was to preclude imposition on the defendarit

police officers of a choice “between self-incrimination

or job forfeiture.” Garrity v. New Jersey, Bi 385

_ US. 493, 496.

As the Court stated in Tehan v. Shott, shpra, 382

U.S. 406, “the purpose behind the privilege against self-

| incrimination is to compel constitutionally the prosecu-

tion “to establish guilt by evidence independently and

—21—

freely secured, and: . . not by coercion prove a charge

against an accused out of his own ees ” Malloy v.

_ supra, 378 U.S. 1, 8. 7

, [T]he basic purposes that lie behind the.

esting against self-incrimination do -not relate.

to protecting the innocent - from conviction, but

rather to preserving the integrity of a. judicial:

_ system in which even the guilty are not to be.con-

victed wae the prosecution ‘shoulder the « entire

load.’-

Tehan v. Shott, supra at p. 415.

In contrast to the accused’s’ right to representation

by counsel at trial, the privilege against self-incrimina-

tion, like the guarantees of the Fourth Amendment, re-

flects “the concern of our society for the right of each

individual to be let alone” and “is not an adjunct to.

the ascertainment of truth.” Tehan v. Shott, supra

at p. 416. ers

Moreover, to'the extent that the Garrity rule seeks to

deter police departments or prosecutors from using the

‘ threat of forfeiture of employment to coerce a suspect-

_ed officer into incriminating himself, this purpose would

not be advanced by making the rule retroactive. Past

coercive practices inflicted upon suspect police officers

- would not be corrected by reversing their convictions.’

See Linkletter v. Walker, supra, 381 U.S. 618, 637.

The second consideration affecting the determination

as to whether a new rule of criminal procedure should

be given retroactive application, “the extent-of the re-

se by law enforcement authorities on the old stand-

s” (Stovall v. Denno, supra, 388 U.S. 293, 297),

pi favors limiting the application ‘of the Garrity rule

to future cases.

ee en een aS od Le eee eee en a em ee eae fo ea bai nits PATS ee TT ee

—22— .

As this Court noted in the companion case. to Gar-

rity, Spevack v. Klein, supra, 385 U.S. 511, 513, the

~ Court had as recently as 1961 held that the privilege —

against self-incrimination was not. available to an at-

torney who was the subject of a judicial disciplinary

'~ proceeding. Cohen v. Hurley, 366 U,S. 117, 125-27.

The Court in Cohen also held .that the Fifth Amend-

ment’s privilege. against self-incrimination,was in any

event not applicable to the states by reason ‘of the '

Fourteenth Amendment, .a holding that remained the

~ law until two months after Stafford’s disputed appear-

ance before the Grand Jury, pane Be v. H ogan, supra,

378 US. 1. ;

‘In Tehan v. Shott, supra, 382 U.S. 406, 417, the

- Court indicated that reliance by the states on such de- |

cisions by this Court was, as it had been in the Link-

_ letter decision, “an important factor militating against -

. retroactive application.”

-Thiedty, “the effect on the administration of justice

of a_ retroactive application of the new standards”

— (Stovall v. Denno, ‘supra, 388 U.S. 293, 297), -would

perhaps not be widespread but would be severe in view.

of the difficulty as well as the strong public interest in

_ ferreting out and punishing criminal conduct on the

part of law enforcement officers.

As noted in the dissenting opinion of Taatioe Sinden

in Garrity, concurred in by Justices Clark and Stewart,

“the conduct in question is that of officials

directly efitrusted with the administration .of jus- °

‘tice. The importance for our systems of justice of

the integrity of local police forces can scarcely be .

-exaggerated. Thus, it need only be recalled that this

Court itself has often intervened in state criminal —

weliin .”

prosecutions precisely on the ground that this might °

encourage high standards of police behavior. See,

eg., Aschcraft v. Tennessee, 322 U.S» 143; Mi-

randa v. Arizona, supra. ~. .” (385 U.S. 493, at

pp. 507-08.) | |

Richowsts finality of judgment lint sometimes - -been. 2

the standard by which retroactive application has’ been

limitgd (see Linkletter v. Walker, supra, 381 U.S. 618,

639-40), in other cases different standards such as the .

date of the disputed police practice (Stovall v. Denno, —

supra, 388 U.S. 293, 296, 300), or the date of the com- _

mencement of the trial have instead been. determina-

tive. ..

Johnson v.. New Jersey, React 384 US. 719,

732-33.

“.. [T]he retroactivity or nonretroactivity of a

rule is not automatically determined by-the provi-

sion of the Constitution on which the dictate is

based. Each constitutional rule of criminal pro-

cedure has its own distinct functions, its own back-

ground of precedent, arid its own impact on the ©

administration .of justice. and the way in which

these factors combine bse ‘inevitably vary with

the dictate involved. . |

J ohnson v. New i ersey, supra at p. 728.

For tates reasons respondent urges that this, Court |

limit the application of the new rule of Garrity v. New

Jersey, supra, 385 U.S. 493, to those cases. in which

the alleged coercive choice between job forfeiture and

- gelf-incrimination was imposed subsequent to the date |

of the Garrity decision. . ;

See ee ee eae ell es eed Ge ee ee ee, Se Te ee

DeStefano v. Woods, ‘supra; 392 US. 631, 635; ~

* ~24— ;

> B. Futitionat Stafford’s - Testimony Before the

- Grand Jury Was Not Given Under Compulsion

and Therefore Was Admissible Under the Rule ©

of Garrity Vv. _New Jersey, 385 U.S. 493

Petitioner ‘Stafford: ‘testified beforé the Grand: Jury

of Los Angeles County on April 22, 1964, approximate-

_ ly one month subsequent: to the date of the detention

and search in question. (Rep. Tr. pp. 1207- 10, 2308.)

At the trial, approximately one year later, the prose-

cution sought’ to impeach Stafford by cross-examining

him as to his testimony before the Grand Jury. This |

opinion ‘of the Court of, Appeal. People v. Canard,

.. supra, 257 A.C.A. 500, 524 (1967) . [65 Cal. Rptr.

15, 31.] .

However, petitioners insist that the use of Stafford’s ,

testimony before the Grand Jury affords ample reason

for the granting of their Petition and reversal of the

judgments after hearing in this Court. (Petition, pp.

44-46.) Respondent submits that Stafford’s testimony

before the Grand Jury was given entirely voluntarily

and that the use of. this testimony did not infect the

: subsequent trial with any element of unfairness.

The determination as to whether the Garrity rule

_ rendered inadmissible at the trial the -prior . testimony

given by: Stafford before . the Grand Jury ‘poses two

questions : (1) whether the: events that preceded Staf-

ford’s . appearance’ before that body. rendered his tes- 7

timony the product of coercion, and (2). whether Gar-

° ‘rity can ever apply to statements by the accused which

“are exculpatory rather than inculpatory in nature.

".

-effort to impeach Stafford failed almost. entirely, as\

“petitioners stressed. at the. trial (Rep. Tr. pp. 2343-: *

44, 2362, 2364, 2366; 2377, 2398) and as noted in the:

—25—

(1) The Events Preceiling Stafford’s Appearance

. | Before the Grand Jury

+

The following evidence, | ‘which was received outside

the presence of. the jury at petitioners’ request (Rep. —

Tr. pp..1172, 1176, 1179), is the basis for their claim

that the events that preceded Stafford’s testimony be-

fore the Grand Jury rendered this testimony involun-

tary and therefore inadmissiple.at the trial.

At 8:30 a.m. on’March 20, 1964, Stafford was dite

_ ing his son to schodl in a’ Valiant. which had been

. provided-to him for police business. Several police of-

ficers had been instructed by Captain Sidney Mills to _

place Stafford on assignment to Internal Affairs for

.. the day and to take possession of his notebooks as well’

as any papers relevant to-the investigation. (Rep. Tr.

pp. 1177, 1180-81.) When Stafford dropped off his son

in Temple City, Sergeant Norman Judd (a lieutenant

at the time of trial). exited from his police. vehicle,

_ approached Stafford, identified himself, and asked Staf-

ford to step out of. the Valiant. Stafford’s notebooks

were on the seat of- the Valiant. Sergeant Judd took”

_ possession of the notebooks. (Rep. Tr. pp. 1181, 1184 .

- 86, 1207, 1224, 1376, 1383.) 3

‘According: to Stafford’s testimony, he removed: the

notebooks, two of which were his personal. ‘property,’

from his pockets when ordered to do so by Sergeant

Judd? He kept police information inside ‘the two per-

- sonal notebooks. (Rep. Tr. pp. 1291-92; 1305.) Pur-

suant to the officers’ request, he removed his gun and

_ his badge and was searched without me consent. (Rep.

“1The notebooks contained information that was offeréd against

- petttioners at the trial. See People v. Canard, supra, .257 A. C. A.

500, 515 (1967) [65 Cal. Rptr. 15, 23]. *

—26—

Tr. pp. 1188, 1292-93.) The officers did not have an

arrest warrant or search warrant, and Stafford was not

advised of his constitutional rights. (Rep. Tr. pp.

1177-78, 1196-97, 1296.) , 4h

Stafford was told that he was the subject of an in-

‘ vestigation and.assigned to Lieutenant Robert Hill for

the day. (Rep. Tr. pp. 1182; 1188, 1236.) Lieutenant

Hill and Stafford got into Sergeant Judd’s vehicle.’

-According to Stafford, he was told to get in the back |

of the police vehicle and sit on the prisoner’s side (the

_ right rear side). Rep. Tr. pp. 1237, 1293.) Stafford

was driven tothe Sunny Cal Motel located in San Ga-

. briel, a community neighboring Los Angeles. (Rep. .

“lr. pp.-1181, 1183, 1208, 1295.)

Sergeant Judd, Lieutenant Hill, and two bun lieuten-

ants were present in the motel room with petitioner

Stafford. Stafford was réquested to empty his pockets

and to disrobe. bin he had undressed except for his

shorts, he indicated\that he did not care to disrobe

further but Lieutenant Hill ordered him to do so.

(Rep. Tr. ‘pp.. 1197-1200, 1266.) Stafford’s account,

denied by the officers, was that Lieutenant Hill threat-

ened to “tear” off Stafford’s shorts. (Rep. Tr.“pp.

1199, 1295.) Stafford was given a skin search, which

included an examination of his anal orifice and the

- area underneath his testicles. (Rep. Tr. pp. 1212-13.)

‘Nothing was discovered during the course of the skin -

search. (Rep. .Tr. p. 1202.) mers

Stafford was kept in the motel room. from shortly

after 8:30 a.m. until 1:00 or 1:30.in the afternoon.

(Rep. Tr. p. 1213.) During this period he was kept

under constant observation, including his visits to the

toilet area. He was not allowed to and his re-

— Y

quest to telephone his wife was refused. (Rep. Tr. pp.

. 1245-46, 1248, 1252-53.) The purpose of the detention

was to conduct the personnel investigation and second-

ly to prevent Stafford from communicating with any-

one else ‘connected with the investigation. (Rep. Tr. p.—

1251.) From the. motel Stafford was taken to the Po-

lice Administration Building, where he was questioned

until 11:00 or 12:00 that night, when he was taken .

home, his automobile and garage searched, and certain

papers taken. According to Stafford, this ‘was done over

his protest. (Rep. Tr. pp. 1247-48, 1267-68, 1302-03.)

Lieutenant Hill based his-authority over Stafford on

the fact that Stafford was “employed as a policeman.”

(Rep. Tr. p. 1257.). (Officer De Maddalena, a code-

fendant, was taken to another motel and given a skin

search. (Rep. Tr. pp. 1277, 1280.) )

Stafford testified that he suffered from a pancreas

disorder that required him to eat often and that he

was refused permission to eat from about 10:30 a.m.

to 1:00 p.m., when he was given a cheese sandwich.

He also testified that he refused a request of the’ of-

ficers that he telephone his wife and permit them to

record the conversation. . Stafford also testified that |

from 2:00 p.m. to 5:00 or 6:00 p.m. on the day in

question, he was placed in-a chair in the interrogation

room .at the- police building. He was not questioned

during: that period and was told. to look at a wall and

not to turn his head. (Rep. Tr, pp. 1299, 1308.) There-

after he was questioned without being advised as to

his constitutional: rights. He was told that his refusal

to answer questions “would be insubordination.” ( ste

Tr. pp. 1300-02.) Although he was aware “that cwwiliz

had that opportunity” not to answer questions, he re

a3

was aware that he “would be put in insubordination

if [he] refused to answer any questions.” (Rep. Tr.

p. 1310,) He felt he would be disciplined or dismissed

if he failed to comply with any of the officers’ orders.

(Rep. Tr. p. 1312.) | .

When Stafford appeared before the Grand Jury ap-

proximately one month subsequent to the aforemen-

tioned events, the subject.of the Grand Jury’s inves-

tigation was described to him and he was informed

‘that he was a suspect and could be indicted on one or

more felony charges. Stafford. stated that he under-

stood this and related, in response ta questions, that

he had an attorney (one Max Herman) with whom

he had spoken prior to appearing before the Grand

Jury. His attorney had advised him of all his constitu-

tional rights as a suspect of a crime. (Rep. Tr. pp.

2309-10.)

Stafford testified further before’ the Grand Jury:

““Q Do you 1 know what your legal rights are

as an individual that might be suspect of a crime

in testifying before a body under oath?

“‘A -Yes, sit

“YQ Now, Rae the circumstances of the law

of our State, Mr. Stafford, you can’t be a wit-

ness before the Grand Jury, a Grand Jury that

is inquiring into a possible criminal indictment

against you, unless you volunteer to do ‘that. Do

you understand that?

“*A . Yes, sir.

“““) Now, are you here because you want to

. be*here?

“*A Yes, sir.

a a ee he

““Q And is it your desire to ask the. permis-

sion of this Grand Jury to testify asters it?

“‘A Yes, sir. :

““Q You want to testify? | ;

“<A You: eb.

“‘“Q) Nobody is forcing you to do this?

“A No, sir.

““Q. This is a free and voluntary act on your

part, is that right?

“‘A Yes, sir. .

““ Nobody has promised you that if you

testify. here that -you would get a lesser’ sentence

if you were convicted or probation or be permitted .

to plead guilty to any lesser offense, have they?

““A No, sir.

““Q) Now, if you, as you have indicated, de-

cide that you want to answer questions and tes-

tify before this body, you understand you also

have the right to ref fhise to answer any question

the answer to which might tend to incriminate you

even though you want to testify? You’don’t have

to answer it unless you want to. Do ta ‘under-

stand that?

“““R Yes.

““Q And you can stand on the constitutional

provisions of the United States and of our state .

and that you don’t have to answer a question that

might incriminate you, You just tell us that.

“*A T understand that, yes.

““< And if any question is put to you by

any person here and you want to have some time

to talk to your lawyer, you understand you can

go talk to your lawyer? —

“*A Yes, sir.

S00 | “

““Q And consult, with him first. We will —

give you every opportunity. Do you understand?

“(A Yes, ‘sir.

““Q And if at any time, why, you want to

interrupt the proceedings to counsel with your at-—

torney, we'll let you do that, too. Do you under-

stand that? ; | |

““A Yes, sir. |

“And under these circumstances, do you - . 4

now request this Grand Jury to give you the

- permission to testify regarding the matters that

are pending before it?

“A : Yes, git.

an Incidentally, anything that you do testify

to here, if you should be indicted, you understand

it could be used — you in any other proceed- -

ings?

“‘A Yes, sir. My lawyer explained all this

to me.’” (Rep. Tr. pp. 2310-13.) _

_ Stafford testified at the trial that the foregoing

questions and answers accurately reflect his testimony

before the Grand Jury.. (Rep: Tr. p. 2313.) The-Grand

' Jury proceedings were secret, and Stafford was not per-

mitted to have his attorney present. Stafford testified

that even after receiving the above quoted admonitions

from the prosecuting attorney at the outset of the Grand

Jury proceedings, he still “knew that if I refused to

testify, I’d be fired.” (Rep. Tr. pp. 2313-14.) :

Stafford testified that during the month between his

detention and his appearance before the Grand Jury,

he was told by Captain Mills, ““You know that you

are police officers and cannot take the Fifth Amend-

ment. If you do take the Fifth Amendment, you'll be

.

RA ti ye : ot a ee es mae §

et nel te ~ is : ~ = ;

&

wail 1—

fired. You understand that, don’t you?’” (Rep. Tr. -

pp. 2305-06. ) According to Staf ford, om another oc-

casion while being interrogated, the same thifig in es--

sence was told to him. (Rep. Tr. pp._ 2306-07.) This __

. testimony was essentially “uncontradicted and was con-

sistent. with Los Angeles Police Department Rules. .

-(Rep. Tr. pp. 971-72.)

Stafford testified that he went before the Grand

Jury because he did not want to lose his job. He had

a police hearing pending and at that time no charges

had been brought against him. He had been on the

police force-almost seventeen years and did not want .

- to-lose his lifetime pension of vo a month. (Rep. ©

~ Tr. p. 2307.) ePeMea

At the trial defense counsel raised in substance the

objection raised in Garrity, that Stafford’s testimony

before the Grand Jury was given under compulsion

and was therefore inadmissible—in the present case as

- impeachment. (Rep. Tr. pp. 2298-2301.)

Following .the hearing outside the presence of the

jury at which the evidence set forth above was re-

ceived, the: trial court made lengthy: findings that in

view of the legal warnings given Stafford at the out-

. set of his testimony before the Grand Jury and Staf-

ford’s responses thereto, his testimony before that body —

was freely and voluntarily itn (Rep. Tr. Pp. 2315-

17.) .

Part of the trial court’s ruling was-as follows:

“.. . [H]e was not under a compulsion whatso-

ever, in view of the complete statement that was

made to him, and his answers in response to those

statements.

Sete PP eI. “ " one

aoe — a an el he ct ie Ai Ci so et rs Pha win s+ - 4 2s

:

—_—

“Tt ‘might also be’ suggested by the Court that .

“if the Court were to adopt the objection raised

by Mr. Parsons, then a person could under similar

conditions with-complete impunity testify to al-

most ‘anything before the Grand Jury, and then

rely on- his Constitutional rights and not be fear- -

ful of any consequences, since he would feel that

he had been safe in testifying to any matters be- -

fore the Grand Jury because it couldn’t be used .

against him in any ‘subsequent proceeding.” (Rep.

Tr. pp. 2316-17.)

w In evaluating the propriety of the actions which tran-

spired in the motel room and the Police Administra-

tion Building on March 20, 1964, it is important to

remember that petitioner Stafford was a police officer

and not an ordihary civilian. Lieutenant Hill specifi-

cally based his authority over Stafford on this fact.

(Rep. Tr.-p. 1257.) This is particularly relevant to pe-

titioners’ complaint that the motel to which Stafford

was taken was outside the city limits of Los Angeles. .

| (Petition, p. 16.) _ |

As a police officer Stafford was under a duty to

. Obey all but the most blatantly unreasonable commands.

Under the present circumstances the orders of the

officers’ assigned to Internal Affairs were severe but .

not unreasonable in the sense of being arbitrary or

capricious. Sergeant- Stafford was the supervising book-

| making sergeant in Central Division vice and was

perhaps the oustanding bookmaking investigator in

_California. (Rep. Tr. pp. 86-87, 116.) Upon learning ©

that a person in Stafford’s position was in the em-

ploy of criminal elements in Los Angeles, the: police

had to take severe measurés.

a

As this Court had recent occasion to note, a police

officer een, | |

“. . . 1s directly, immediately,- and entirely re-

sponsible to the city or. State which is his em-

ployer. He owes his entire loyalty to it. He has

no other ‘client’ or principal. He is a trustee of

the public interest, bearing the burden of great

-and total responsibility to his public employer.

Unlike the lawyer\ who is directly responsible to

his client, the policeman is either responsible to

the State or to no one... .”

Gardner v. Broderick, 392 U.S. 273, 277-78.

The Los Angeles Police Department properly felt

that Stafford’s detention ‘and interrogation, and -

the search of his person and effects, .was necessary

to the accomplishment of the personnel investigation of

the suspect officers. Undoubtedly the investigating of-

ficers hoped to discover additional documentary evi-

dence of Stafford’s guilt such as that found in his °

notebooks. Secondly, it was felt essential to’ keep Staf- .

ford incommunicado so that he would’ not forewarn .

the other conspirators that the bookmaking-bribery ring

had been uncovered. (Rep. Tr. p. 1251.) Seventy-five

officers were in the field awaiting the order to arrest

suspects at bookmaking locations. In the end the in-

vestigation undertaken that day revealed evidence of

bookmaking at ten locations of which both Stafford

and De Maddalena had the telephone, numbers in their.

“notebooks. People v. Canard, supra, 257. A.C.A. 500,

. 510 (1967) [65 Cal. Rptr. 15, 22]. :

4

Stafford and De Maddalena were taken at first to

motel rooms rather than to: the police building for the

apparent reason that the police felt there might be other

officers involved in the conspiracy wlio would be fore-

warned, thus jeopardizing the mass investigation, if

they’ were to see Stafford and De Maddalena being

brought to the station in-detention.

In any. event, in evaluating petitioners’ claim of error

it is essential not to lose sight of the primary consider-

ation, viz.. whether the unpleasantness to which Staf-

eford was subjected, properly or not, rendered his tes-

timony before the Grand yury ¢ one — later the

product of coercion.

| Respondent submits that assuming, but not coticed-

ing, that petitioner Stafford was subjected to an im-

proper investigation on March 20th, this fact as. well

as any intimation that he would be disciplined or dis- .

missed in the event he refused to testify before thc

Grand Jury did not render his testimony before that.

- body involuntary and therefore inadmissible-at the trial

under Garrity v. New Jersey, 385 U.S. 493. .

The test, as expressed by this Court, is >

“. . ‘[W]hether, granting establishment of the

primary illegality, the evidence to which instant

objection is made has been come at by exploitation

of that illegality or instead by mieans sufficiently

: distinguishable to be purged of ‘the primary taint.’

a ¢ trot .

Wong Sun v. United States, 371 U.S. 471, 488;

* See also, Hoffa v. United States, 385 USS. 293,

308-09:

‘Nardone v. United: States, 308 U.S.’ 338, 341: :

Smith v. United States, 324 RF, 2d 879, 881-82

(D.C. Cir. 1963), cert. denied, 377 Uo. 954;

— =

Payne v. United States, 294 F.2d 723, 726-27,

- (D.C. Cir. 1961); cert. denied, 368 U.S. 883;

People v. Ditson, 57 Cal. 2d 415, 443-44 (1962)

[20 Cal. Rptr. 165, 181].

From the opinion of this Court in Garrity; that case

appears to have involved. uncontradicted evidence that

the prior testimony was given under duress.

The contrast between the defendants’ pre-trial in- .

terrogation in Garrity and petitioner Stafford’s appear-

ance before the Grand Jury i is striking.

In Garrity the questioning of each defendant began | -

with an explanation of his legal rights andthe warning 3

that, in accordance with a New Jersey statute, “if he —

refused to answer he would be subject to-removal from

office.” Garrity v. New Jersey, supra at p. 494.

In the present case while there is evidence that fel-

low officers had intimated in the weeks preceding the

. Grand Jury hearing that: Stafford would ‘be subject to

discipline in the event he refused to testify, the Grand

Jury proceeding was apparently free from any such

coercive suggestions. :

As set forth above, at the outset of the hearing

Stafford was given a painstakingly detailed accotint of

his legal rights by the prosecuting attorney: Stafford

testified that before his appearance the: had conferred

with his attorney, -who had also explained Stafford’s

constitutional rights. Stafford testified further that he . .

understood his rights, including the fact that he could

testify before the Grand Jury only if he volunteered

to do so. Stafford’s testimony indicated expressly tha‘

he had appeared because he freely and voluntarily de-

sired to do so and that no. one had forced him to do

| —36—

so. He understood that he’ could claim ‘his privilege

» against .self-incrimination as to any question that might

incriminate him. Stafford was also told that he could

interrupt. the proceedings at any time to consult with

‘his attorney before answering any question. (Rep. Tr.

pp. 2309, 2313.)

At: the time Stafford chose to testify before the

Grand Jury, weeks had elapsed since the motel room

detention and the intimations that he might be fired.

in the event he refused to testify. ‘These events were

superseded by the explanation of his legal rights re-

ceived by Stafford at the outset of the Grand Jury hear- .

ing and his testimony at that hearing expressly indi-

cating his uncoerced decision to testify. :

In light of the present -record it. appears that Staf-

ford’s appearance before the Grand Jury was precisely

“the. situation where one who is anxious to make a

clean breast of the whole affair. volunteers the in-

formation.” Garrity v. New Jersey,-supra at p. 499.

(2) The Applicability of Garrity v. New Jersey, 385 U.S.

493, to Statements That ‘Were Neither Confessions Nor

Admissions But Merely Exculpatory Statements Used

to Impeach the Credibility of Petitioner Stafford as a

. Witness .

Garrity v. New ie supra, 385 U.S. 493, speaks

in terms of using “the threat of. discharge to secure

incriminatory evidence against an employee.” ” (Empha-

sis added. ) Supra, at p. 499,

The disputed testimony of Stafford before the Grand

Jury was all exculpatory and was used at the trial only -

to impeach Stafford’s credibility as a witness after

Stafford had taken the stand and made a general de-

nial. of any involvement in the conspiracy neat.

People v. Canard, supra, ‘257 A.C.A. 500, = 16

(1967) [65 Cal. Rots. 15, 25).

At the triad, Stafford testified that a found” a miug

book ( Exh. V or W; elonging to one Officer Dohler )

while cleaning out his file cabinet. It had-a note at-

tached that said, “Possibly came out of NZK 002,.

a 1962 blue ‘Ford! ” The Department of Motor Vehicles %

did not. have the car listed.. Stafford had lost a book

a few days earlier, ‘When, Ke called down to the garage .

he mistakenly teferred to NZK 002, which he had on

his mind. (Rep. Tr. pp. 2255- 58.):

_. At thet time Stafford testified before the Grand Jury,

he did not recall that the presence of NZK 002 in.

- is book had‘ been the. result of an inquiry about Ex- ©

| hibits V and W. (Rep. Tr. p. 2274.)

The Grand Jury proceeding took place about one -

year before the trial: Stafford had had a chance to re-

fresh his recollection. The use of ‘the Grand Jury tes-

timony merely tested’ his memory and veracity as a‘ wit-

ness.

At the trial, Stafford testified that Myers acai 7

knew a lot of gamblers. (Rep. Tr. p. 2203. ) |

Before the Grand Jury, Stafford testified that My-

ers was reputed to be the money behind gambling and

- that it had been known that he ‘did some bookmaking.

(Rep. Tr. p. 2343.) Petitioners contended at the trial —

that this was no impeachment at all. ( yaad TP. P. 2343,

lines 16-19; p. 2344, lines 5-7.) ae

Before the Grand Jury, .Stafford ‘also testified that ee

he had information that Al Glassman was running a

"back = office for Myers. i Tr. P. 2399.) Pe-

#

=~

titioners contended at the trial that this was not im-

peaching.’ (Rep. Tr. p. 2377, lines 1-3;-p. 2398, lines.

5-6.)

At the trial, Stafford. isis labotated | in greater

detail on Myers’ reputation.

Before the Grand Jury, ‘Staf ford testified ‘that he

did not. recall the meaning of the entry in his note-

book “Make meet with Cy, Maury, Hank.” The only

thing he could think of was,

“ ‘Well, when we went to the Wenneré Ho res-

taurant I discussed with him the week prior about

that I knew that Myers sometimes ate there, and

I also knew—I told him, like I told you before,

that he is, you know, reputed to *be ‘one of the big

backers of bookmaking, and he. was in the dis- . |

trict.’”” (Rep. Tr. p. 2363.)

He did not remember which Maury he was ‘talking |

about. (Rep. Tr. pp. 2362-65.) Petitioners contended

at the trial that this did not constitute impeachment.

(Rep.* Tr. p. 2362, lines 15-17; p. 2364, lines 4-6; p.

2366, lines 23-25.)

* At the trial, Stafford testified that “Make meet

with Cy, Maury, Hank” referred to Gordon Jones (it

was a “J”, -not a “Y”), Hank Weldon, and Maury

Rissman. (Rep. Tr. p. 2361.)

Before the Grand Jury, Stafford had claimed not to

remember the significance of the entry and related

the only thing he could think of. At the- trial, his

‘memory of the significance of the.entry was somewhat

: — =

Respondent submits that by its language -the Gar-

rity opinion is limited to the exclusion of incriminating

| bluish was never intended to enable 4 defendant

h-, to take the witness stand, issue a general denial of

} the alleged of fense, testify that his prior statements

were the result of coercion, and’ thereby insulate him-

self from impeachment on cross-examination.

C) See People v. Gensér, 250 Cal. App. 2d 351,

354-55 (1967) [58 Cal. Rptr. 290, 291],

_which discusses the Garrity opinion. ~

As Justice Frankfurter wrote for the Court in Wal-

der v. United States, 347 U.S. 62,

“Tt is one thing tq say that the Government can-

,. not make an affirmative use of evidence unlawful-

ly obtained. It is quite another to say that the de-

fendant can turn the illegal method by which evi-

dence in the Government’s possession wa. obtained

to his own adyantage, and provide himself with a

a against ‘contradiction of his untruths. . .

. [T]here is hardly justification or let

si the defendant affirmatively resort to per-

ee jurious testimony in reliance of the Government's

a. disability to challenge his credibility. . . .”

; Walder v. United States, supra at p. 65;

See also Brown v. United d States, 356 U.S. 148,

155-56. a

C. Assuming But Not Conceding Error in the Use

at Trial of Petitioner Stafford’s Prior Testi-

mony Before the Grand Jury, Such Error Was

Harmless Beyond a Reasonable Doubt Under

Chapman v. California, 386 U.S. 18, Particular-

_ ly With Regard to the Other Petitioners

In the recent case of Chapman v. California, 386 —

U.S. 18, this Court recognized that not all error of a

constitutional magnitude requires reversal of the judg-

ment convicting an accused. _

The test set forth in Chapman is that “the court

must be able to declare a belief that it was harmless ;

beyond a reasonable doubt.” Supra, at p. 24. See also

Fahy v. Connecticut, 375 U.S. 85, 86-87.

This was precisely the test applied by the California

Court of Appeal in evaluating the contention. of peti-

tioners that they were entitled to reversal of their con-

victions under the Garrity decision :

“, . . [A]ssuming that error was committed, it

was/not prejudicial. Beyond a reasonable doubt, the

rvor in permitting the use of the grand jury tes-

timony could not have prejudiced Stafford. (Chap-

man v. California (1967) 386 U.S. 18 24... .)”.

People v. Canard, 257 A.C.A. 500, 525 (1967)

[65 Cal. Rptr. 15, 31]. :

Respondent submits that from an examination of the

disputed Grand Jury testimony, set forth above in the

preceding subargument, if is clear beyond a reasonable

doubt. that petitioner Stafford could not have been prej-

udiced by the minimal and almost totally ineffective

impeachment effected by use of his prior testimony be-

- fare the Grand Jury.

~ = eens A

oe pms ee eee — . 7 = °

Lcalitijen’ .

It is true, a fortiori, that the other petitioners could

not have been prejudiced by the use of this prior tes-

timony to impeach Stafford. This conclusion is forti-

fied by the trial court’s instructions to.the jury which

limited the impeachment to Stafford’s credibility as a

witness. The instructions also served to minimize any

prejudice to Stafford himself. (Cl. Tr. pp. 84, 88-89.

91-92; see also Rep. Tr. Pp. 2323-24.)

IT

THE DETENTION AND SEARCH OF ‘PETITIONER

STAFFORD WERE NOT VIOLATIVE OF THE

FOURTH AND FOURTEENTH AMENDMENTS’

PROSCRIPTION © AGAINST JnRSASORASLE

SEARCHES AND SEIZURES ,

Petitioners contend that petitioner Stafford was de-

nied the right to a fair trial and due process-of law,

in violation of the Fourth and Fourteenth Amend-

ments to the United States Constitution, by reason of

his detention, the allegedly unlawful search, and the

‘use of the fruits. thereof -at the trial. (Petition, p. ‘28.)°

Petitioners’ argument is largely a recasting, in terms

of search and seizure, of the contention discussed in

the previous argument herein.. Respondent therefore in-

corporates the previous argument insofar as it relates

to Stafford’s rights under the Fourteenth Amendment

as defined by the Fourth Amendment.

Petitioners’ claim of unreasonably search and seizure

must confine itself at this stage of the Proceedings | to

the assertion that ¢ertain evidence, physical or testi-

monial, was received in evidence at the trial (Mapp v.

Ohio, 367 U.S. 643, 655) as the result of the search

and seizure of their persons, or of the search of proper-

I oe a

—4Z—

_ ty and the seizure of evidence in which they had an

interest. | ! 3

Simmons v. United States, 390 U.S. 377, 389-

90; | ;

Jones v. United States, 362 U.S. 257, 261.

These principles apply to limit petitioners’ claim of

unreasonable search and seizure as follows. First, the

argument in question can be made in this. forum only

by petitioner Stafford since he alone among the peti-

tioners can be alleged to have been “the victim of an

invasion of privacy.” Jones v. United States, supra

at p. 261. The other petitioners had no interest. in any

premises searched or property seized. Secondly, the only

items of evidence which belonged to Stafford and whose

reception at the trial are contested. by petitioners on the

ground of unlawful search and seizure are the two note-

books (Exhibits 69 and 70) which were taken from

the seat of the police Valiant when Stafford was stopped

- at the school on March 20th.

- Petitioner Stafford’s detention at the motel and later

in the day at the police building is not alleged to have

resulted in the reception of any evidence at the trial,

with the exception of the testimony given by Stafford

before the Grand Jury, a matter discussed in the pre-_

ceding argument. Assuming, but not conceding, that -

Stafford’s detention by his fellow police officers con-

stituted an unlawful arrest, this fact alone would have

no bearing on the validity of his conviction. This Court

has held that even the unlawful and forceful abduc-

tion of an accused by law enforcement officers does not

in itself impair the validity of the proceedings at his

trial. Frisbie v. Collins, 342 U.S. 519, 522-23.

tt i eae ee a i

ae a ee ee pe ee ee a rs aa —— aces ~~ ’

i = ee ge ee

r?

aliens

Turning to the seizure of the two notebooks, respond-

ent submits that the detention of Stafford at the school

was proper and that the evidence retrieved incidental-

ly thereto was properly received at the trial over ob-

jection. (Cl. Tr. pp. 32-34; Rep. Tr. pp. 1177-78.) .

Depite petitioners’ implication to the contrary, nei-

ther federal nor California law required the investigat-_

ing officers to obtain an arrest warrant or search war-

rant to detain Stafford and search his person. Nae

Tr. p. 1177.) ‘

United States v. Rabinowitz, 339 U.S. 56, 65-

66;

People v. Winston, 46 Cal..2d 151, 162-63

(1956) [293 P. 2d 40,47]...

When Stafford droppéd off his son at: school, Ser-

geant Judd approached Stafford, identified himself, and

asked him to step out of the Valiant (a police-owned

vehicle). There is ample evidence in the record indi-

cating that the notebooks were in plain sight on the

seat of the: Valiant. Sergeant Judd took possession’ of

the .notebooks after Stafford left the vehicle. (Rep.

Tr. pp. 1124, 1180-81, 1184-86, 1207, 1224, 1376,

1383.) ,

This evidence was contradicted by the testimony of

Stafford, who claimed to have’ removed the notebooks

from his pockets when ordered to do so by Sergeant

Judd. Stafford claimed further that he had purchased

the two notebooks with his own money, although he

admitted that he kept information concerning’ official

police business inside these notebooks. (Rep. Tr. pp.

1291-92, 1305, 2157.) The notebooks contained infor-

mation that was offered against petitioners at the trial.

am

Seé People v. Canard, mre; 257 A.C.A. 500, 515

(1967) [65 Cal. Rptr. 15, 25.].

To avoid undue repetition, respondent refers to its pre-

vious argument regarding the right of the Internal

- Affairs officers to conduct a personnel investigation

of the department’s police officers. \In light of these

- special circumstances it is submitted that the ordinary

rules of arrest and search and seizure do not apply.

Moreover, it is significant that the vehicle Stafford

was driving belonged to the police department and not

to him. The notebooks were records of official police

business. That Stafford may have purchased’ the note-

books with his own funds does not seem significant;

certainly a police officer ‘cannot insulate records of of-

ficial police business from inspection by the police de-

partment merely by entering them in a notebook which

he has paid a few cents to purchase..

Davis v. United States, 328 U.S. 582, 588-91;

Wilson v. Wnited States, 221 U.S. 361, 380;

United States v. C ollins, 349 F.2d 863, 867-

68 (2d Cir. 1965), cert. denied, 383 U.S. 960.

But even in the event the detention of Sergeant Staf-

ford and the seizure of the notebooks were to be judged

_ by the standards applicable to confrontations between

the ordinary citizen and the police, the detention and -

seizure here would pass muster under the Fourth and .

Fourteenth Amendments.

The information in the possession of the investigat-

ing officers was not only enough to justify them in _

detaining Stafford on the street and subjecting him .

to a cursory search (see Terry v. Ohio, 392 U.S. 1)

but was sufficient to afford them probable cause for

a ORT SETS PT Er

AS

his arrest and justify a search incidental thereto. United

' States v. Rabinowitz, supra at pp. 60-61.

~ See People v. Canard, supra, 257 A.C.A. 500, |

505-10, 518 (1967) [65. Cal. eae 15, 18-

22, 27].

However, as previously noted there is sybstantial

evidence in the record which indicates that the note-

books were already in plain sight on the-seat of the

Valiant at the time Staf ford was approached by the

investigating officers, and therefore no search took .

place. |

People v. Harris, 67 Cal. 2d 866, 871 (1967)

' [64.Cal. Rptr. 313, $i], and cases cited ©

therein. x

See also United States v. Lee, 274 U.S. 559,

563. |

Cd

-

The notebooks were subject to seizure whether they are

viewed as instrumentalities of the - offense or as mere

evidence of the offense.

Warden v. Hayden, 387 U.S. 294, 300 ; |

People v. Thayer, 63 Cal. 2d 635, 642 (1965)

[47 Cal. Rptr. 780, 784], cert. denied, 384

U.S. 908.

See People v. Canard, supra, 257 A.C.A. 500,

$18 (1967) [65 Cal. Rptr. 15, 27].

Finally, even if the admission in evidence of the note-

books is deemed erroneous; it is clear beyond a reason-

. able doubt that petitioners were not prejudic iced thereby.

| ! Chapman v. California, 386 U. S. 18, 24. |

* “III oS : 7

THE TRIAL COURT PROPERLY REFUSED ‘TO DE- . .

CLARE A MISTRIAL SOUGHT ON THE BASIS OF

UNFAVORABLE NEWSPAPER AND TELEVI- 7 |

SION PUBLICITY DURING THE PENDENCY OF

THE TRIAL

Petitioners contend that the trial court erred in de-

- nying their motion for mistrial founded upon unfavor-

' able newspaper and television publicity during the pend-

ency of the trial. (Petition, p. 31.)

That part of the record bearing upon petitioners’

present contention is fully and accurately set forth. in

the opinion of the Court of Appeal. The relevant por-

tion of the opinion is set forth verbatim below with af

' citations. to the record supplied in brackets by respond-

— | | | .

“During the progress of the trial, defendants

- moved for a mistrial on the ground that unfavor-

able publicity in the local press and on television

_ news-prejudiced their charices for a fair trial. The _

¢ourt denied. defense requests to poll the jury to-

determine whether they had read or heard the news

reports, and denied their motions for a mistrial.

Defendants assign. this as error. [Rep. Tr. pp. . |

, 359-60, 900-09, 996-1011, 2098-2104.] "|

; The publicity referred to consisted mostly of

substantially accurate réporting by the news media

during the trial of the evidence as it was presented.

[Rep. Tr. pp. 903, 1003-04; Exhibits D, K, T,

and U.] There were two notable. exceptions: On

April 20, 1965, the prosecution’s star witness, Of-

ficer Gunn, testified that in a conversation with

De Maddalena which concerned the latter’s plan to

~~ —

a aha iekanatiediadl oo PERN RAC TO AO IOLD BE Nay ee Sens ae ' sect omeencctnne compen ecm efi

* ‘

ila iid id Fat

willy .

take over the operation when Stafford left Central.

Vice, he had asked De Maddalena if he was afraid

of Stafford. De Maddalena had indicated he

thought he could handle Stafford, althoiigh he was.

known as a ‘mean ,guy’ who had ‘access to muscle’

and who had set up several individuals in the past

for a ‘working over’; that one of: these individuals,

a bookmaker named Lipowitz, had been set up by

Stafford ‘for a working over with a baseball bat.’

This testimony was elicited without objection. After

_ it had been received, a motion to strike was denied.

_ However, later in the trial—on May 3, 1965—the .

court granted defense motions to strike it. [Rep.

Tr. pp. 343, 357, 359-60, 2030; 2097. ]

“On April 23rd the’Los Angeles’.Herald-Exam-

iner printed a story concerning the statement that

Stafford had Lipowitz beaten up with a baseball

bat. In the story, details of that-beating and another

one Lipowitz allegedly received were reported. The

details were never brought out at the trial. [Ex- |

hibit L.] - ie

~ “On the 5 p.m. and 11 pm. KABC- TV Siete

Ward news programs of the same date, Mrs. Lip-

owitz was interviewed. -She ‘was questioned . con-

cerning her husband’s having been ‘worked over.’

She stated that she had gone to the trial to see

_. Stafford, because she ‘wanted to see what a man

looked like, an officer of thé law, that could do such

a thing as that.’ She further stated that putting

Stafford in prison for: the rest of his life could

not adequately punish him for what he had done

to her husband; that the testimony of his fellow

officers indicated Stafford had had her —— :

beaten up. nen R and S.] |

§

“Throughout the trial the court repeatedly, and

in clear and unequivocal’ language, admonished the

jurors that they were not to form-any opinion on

the case until it was submitted to them; that they

were not to read any reports of the case in the

. newspapers, or to listen to or watch any reports

of it on radio or TV. In its formal instructions, |

- the court told the jurors that in deciding the case

they were to be governed solely by the evidence

introduced at the trial and the law as stated by

the court. [Cl. Tr. p. 72; Rep. Tr. pp. 53A-54A,

58, 89, 133, 173, 387, 669, 706, 844, 889, 978,

1005, 1032,.1061, 1067, 1155, 1175-76, 1360, 1409,

1625, 1707, 1770, 1856, 1931, 1960, 1975, 2158,

2247, 2293, 2374, 2467, 2537, 2596, 2642, 2738,

2805, 2989, 3055.]

_ “The trial judge, in denying the motions for mis-

trial and to poll the jury concerning the news. re-

ports, concluded that the publicity was not con-

ceivably prejudicial; that he was satisfied with the

integrity and intelligence of the- jurors and had to_

assume they abided by his repeated anon

that ‘he would not have the jury polled because-he |

neither wished to arouse their curiosity nor to em-

barrass them.” [Rep. Tr. pp. 907-08, 1010-11,

2104.) People v. Canard, supra, 257. A.C.A. 500,

* 518-19 (1967) [65 Cal. Rptr. 15, 27-28].

Respondent submits that the evidence of the Lipowitz

beating was relevant and admissible in.that it tended

to prove that Stafford was part of the conspiracy.

However, the trial court in an effort to be particularly. ~_

fair struck the disputed testimony ‘relating to the beat- .

ing ( Rep. Tr. p. 2097 ), and this certainly: obviated

ag prejudice to Stafford and the other petitioners.

' There was nothing i in the record establishing that the |

jurors were aware of, or had been influenced by, the

newspaper and television publicity, most of which was. —

a totally accurate reflection of the evidence received

in the courtroom and none of which was prejudicial.

Under California law the jury was assumed-to—have—

heeded the trial court’s repeated admonitions not to

look at news reports of the case: (People v.: Gomez, |

41 Cal. 2d 150, 161-62 (1953) [258 P.2d 825, 832],

3 and i in view of these admonitions it was proper for the

- trial court to refuse to poll the j jury.

- People: v. Lambright, 61 Cal. 2d -482, 486-87

(1964) [393 P.2d 409, 412], appeal dismissed =

_and cert. deniéd, 384 U.S. 434;

_ People v. Brac, 73 Cal. -App. 2d 629, 635-36 |

~ (1946) [167 P.2d 535, 538]. Pao hl

None of. the publicity is claimed to have. occurred

prior to the trial, and accordingly no claim is made

that any juror came “0 the-case convinced of petition-

ers’ guilt. Cf. Irvin v. Doud, 366 U.S. 717, 727.

Petitioners have failed to meet the burden. of dem-

onstrating that the press arouséd such prejudice against

them that they were sess are. from receiv-

ing a fair trial. —

Stroble v. California, 343 U:S. 181, 191-95 ;

Cf. Sheppard v. Maxwell, 384 U.S. 333, 354,

356-58, relied on by petitioners. :

As the’ Court of Appeal correctly concluded with ot

ference to petitioners’ claim of error: ,

- Absolutely’ no evidence was presented that any

\ pretrial publicity: could have affected the selection

¥ >

—§0—

of an impartial jury. This case bears no resem-

blance to Sheppard y. Maxwell, 384 U.S. 333. ...,

relied on by defendants, where, during the six or

seven months preceding the trial, there was ‘a

barrage’ of newspaper headlines, articles and other

news reporting, slanted against defendant and cre-

ating a ‘wave of public passion’ against him.”

People v. Canard, supra, 257, A.C.A. 500, 519-

20 (1967) [65 Cal. Rptr. 15, 28]:

Respondent submits that the newspaper and televi-

sion publicity during the pendency of the proceedings

in no way detracted from the fairness of petitioners’

trial.

IV ;

THE INTERCEPTION AND RECORDING OF TELE- .

_ PHONE CONVERSATIONS MADE BY PETI-

TIONER STAFFORD AND A CODEFENDANT

DID NOT VIOLATE, THEIR CONSTITUTIONAL

RIGHTS OR THE FEDERAL COMMUNICATIONS

ACT

Petitioners contend that the interception of telephone

conversations made by petiti - «nd by a codefendant,

Officer De Maddalena, ov olice department tele-

phones, and the admis « . in evidence of recordings of

these conversations, were violative of their rights un-

der the Fourth, Fifth, and Sixth Amendments to the

- United States Constitution and under the Federal Com-

munications Act..( Petition, p. 36.)

The disputed telephone conversations include several

conversations between- Officer Gunn and De Mad-

dalena, between Officer Gunn and petitioner Myers,

and between: Officer Gunn and. codefendant Adler.

(Rep. Tr. pp. 266-72, 302-13, 328-32; Exhibits 4, 9,

ws.

11, and 16-18; People v. Canard, supra, 257 A.C.A.

500, 511-14 (1967) [65 Cal. Rptr. 15, 22-24].), How-

ever, petitioners’ claim of error is directed principally

to the interception and recording of petitioner Staf-

-ford’s telephone conversations with Officer Gunn, the

Department of Motor Vehicles, and the police vehicle

dispatcher’s office.. (Rep. Tr. pp. 292-94, 1150-51, 1153-

55; Exhibits 7, 56 and 57; People v. Canard, supra

at pp. 507-08, 509-10 [65 Cal. Rptr. at pp. 20, 21-22.])

The aforementioned evidence was received over pe-

titioners’ objection at the trial. (Rep. Tr. pp. 1081-

86, 1111.)

Los Angeles Chief of Police William Parker testi-

fied that the telephones utilized by the police depart-

ment, which is a branch of the municipal government of

the City of Los Angeles, were maintained exclusively

for the conduct of police business. (Rep. Tr. pp. 53-54,

69, 955.) Petitioner Stafford was aware of this fact. .

(Rep. Tr. p. 2234.) When Chief Parker learned that

Central Vice telephones were apparently being used for

criminal purposes, he ordered Captain Mills of the In-

ternal Affairs Division to monitor and record conver-

sations of the Central Vice telephones. (Rep. Tr. «pp.

51, 55-56, 953-54.) Captain Mills therefore ordered one

Officer Briggs to establish extensions to Internal Af-

fairs on the Central Vice telephones. (Rep. Tr. pp. 953-

54, 956, 1060-61, 1063.) Between 150 and 200 tele-

phone calls were monitored, without the permission of

petitioner Stafford or the other parties to the conver-

sations ¢with the exception of Officer Gunn.) (Rep.

Tr. pp. 1069-71, 1080.)

Respondent submits that the monitoring of the con-

versations and the reception in evidence of recordings

ii.

of the conversations were proper under the Constitu-

tion as well as under federal and state statutes.

' Although the Federal Communications Act (47

U.S.C. § 605) has been applied to interstate communi-

cations (Weiss v. United States, 308 U.S. 321, 329),

it provides a rule of evidence for federal courts and

does not apply to state proceedings.

Schwartz v. Texas, 344 U.S. 199, 203;

People v. Sica, 112 Cal. App. 2d 574, 585-86

(1962) [247 P.2d 72], cert. denied, 346 U.S.

831. .

Moreover, Chief Parker’s order arguably —_ the

monitoring and recording an “authorized” interception

within the meaning of section 605.' {

California Penal Code sections 640, 653, and 653}

likewise permitted the “authorized” interception of the

conversations in question, particularly in light of the

fact that only “confidential” communications are with-

in the purview of the statutes forbidding eavesdrop-

ping or recording. “Confidential” gommunications are

defined as those “carried on in such circumstances as

may reasonably indicate that the parties to such com-

munication desire it‘to be confined to such parties.”

' Expressly excluded from this definition are communi-

cations made under circumstances “in which the par-

ties to the communication may reasonably expect that

the communications may be overheard or recorded.”

Cal. Pen. Code § 653}.

As was held by the Court of Appeal in the present

case,

. . Clearly the chief of police, as the person

supervising and controlling the use of the phones,

was a person authorized to monitor them. Any call il

YY

— =

‘properly made on those telephones was the busi-

ness of the chief of police, and hence not confi-

dential as to him or those authorized by him to

hear it. It is common knowledge that special se-

curity precautions must be taken in police depart-

ments; those using.the lines could reasonably ex-____

pect that it could take the form of monitoring

calls. ”

People v. Canard, supra, 257 A.C.A. 500, ‘521

(1967) [65 Cal. Rptr. 15, 29].

In a recent decision this Court made it clear that

although the absence of any trespass is no longer suf-

ficient: in itself to justify the interception of a tele-

phone communication, it is the degree to which privacy

could justifiably be expected’.that renders the com-

munication immune from interception. Katz v. United

States, 389 U.S. 347, 350-53.

Although Katz and other recent decisions of this

Court have stressed the preference that interception be

pursuant to court order, respondent submits the fact

that the lines were city telephones used only for police

business rendered the present interception outside the

ambit of the constitutional restrictions imposed upon

ordinary interception.

This Court has in the past recognized that such re-

' Strictions will vary to the degree that the interception

takes place where privacy can reasonably be anticipated.

In Lanza v. New York, 370 U.S. 139, the Court.

upheld surreptitious electronic eavesdropping of a con-.

versation between‘a prisoner and his wife in the vis-

itors’ room of a public jail, although the opinion was

premised in part-upon the fact that .no. evidence ob-

tained by the electronic eavesdropping was introduced

sini

against the petitioner in a criminal prosecution. Supra |

at pp. 145-47, :

The Court noted:

“But to say that a public jail is the equivalent

of a man’s ‘house’ or that it is a. place where he

can claim constitutional immunity from: search or

seizure of his person, his papers, or his effects,

is at best a novel argument. . . . [W]ithout at- .

tempting either to define or to predict the ul-

timate scope of Fourth Amendment protection, it

is obvious that a jail shares none of the attributes

of privacy of a home, an automobile, an office,

or a hotel room. In prison, official surveillance |

has traditionally been the order of the day. Though

it may be assumed that even in a jail, or perhaps

especially there, the relationships’ which the law

has endowed with particularized confidentiality

must continue to receive unceasing protection, there

is no claimed violation of any such special rela-

tionship here.” :(Footnotes omitted. ) Lanza v. New

York, supra, at pp. 143-44.

The Lanza opinion evidences the reluctance of the

courts to extend into high security areas the constitu-

tional safeguards which traditionally have been con-

fined to places where the individual can reasonably ex-

‘pect that his words will not be-overheard or récorded.

, See People v. Apodaca, 252 Cal. App. 2d 656,

659 (1967) [60 Cal. Rptr. 782, 784] ;

People v. Hughes, 203 Cal. App. 2d. (598, 601

(1962) [21 Cal. Rptr. 668, 670];"

People v. Morgan, 197 Cal. App. 2d 90, 93-94 |

(1961) [16 Cal. Rptr. 838, 840], cert.. denied,

370 U.S. 965.

Fe ee nee EO a’ —— —

bs ; —55— M

In Sanitation Men v. Sanitation Comm’r, 392 U.S.

280, 281, 285 (n.6), a case involving the propriety of

a dismissal of public employees, this Court did not

- reach the wiretap issue. The Court of Appeals had up-

held the wiretapping, under court order, of a telephone

leased by the New York City Department of Sanitation

for the transaction of official city business. (383 F.2d

364, 369 (2d Cir. 1967).) .

In the present case respondent, in urging the pro-

priety of the wiretapping in. question, relies not only

on the fact that city telephones used only for official

- business were involved, but also on the fact of the se- -

curity precautions which had to be taken and which rea-

sonably should have been anticipated by Stafford and -

De Maddalena.

Moreover, respondent submits that the recording#and

use at trial of those telephone conversations which were

between Officer Gunn and the defendants (including

petitioners Stafford, and Myers) were not unlawful even

absent the fact of security requirements and of official

city telephones being involved. Since Officer Gunn was

one of the participants in “the conversations and

could have testified as’'to the content of the conversa-

tions, he could consent to their interception and record-

ing. ~ Nd 2

Lopez v. United States, 373 U.S: 427, 438-39 ;

People v. Fontaine, 237 Cal. App. 2d 320, 331-

32 [46 Cal. Rptr. 855, 864], vacated on an-

other ground, 386 U.S. 263. ~°

This is particularly true of the recording, by means

of an electronic device worn by Officer Gunn, of a

conversation between Gunn and De Maddalena. (Peti-

| Ste .

¢ :

tion, p. 37; Exhibit 14.) See Lopez v. United States,

supra at pp. 438-39. .

Finally, in view of the fact that the- interceptions and

recordings were made at a time when the crime of con-

spiracy was still being committed by the defendants and

‘their liberty had not yet been restricted, their claim of

‘denial of right to counsel is withqut merit.

° Massiah v. United States, 377 U.S. 201, 204-

06; ° .

People v. Ing, 65 Cal. 2d 603, 612-13 (1967)

[422 P.2d 590, 595-96].

: V

PETITIONERS’ CONTENTION DISPUTING THE

SUFFICIENCY OF THE EVIDENCE DOES NOT

PRESENT A SUBSTANTIAL FEDERAL QUES-

TION ‘

Petitioners contend that “[t]he ‘evidence was in-’

sufficient to sustain the judgment of guilty . . . as to

any of the petitioners.” Petitioners claim specifically

“that no conspiracy was established.” (Petition, p. 40.) ~~

However, absent a total lack of evidence constituting

a denial of due process of law, the sufficiency of evi-

dence establishing guilt is a matter of state law and

may not be raised in seeking federal review of a state

conviction.

Fernandez v. Klinger, 346 F. 2d 210, 211 (9th

Cir. 1965), cert. denied, 382 U.S. 895; at

Schlette v. People of State of California, 284

F.2d 827, 834 (9th Cir, 1965), cert. denied,

366 U.S. 940.

a aa

“In any event the evidence as disclosed by respond-

ent’s Statement of Facts herein was clearly sufficient

to sustain the judgments of conviction for conspiracy

- to obstruct justice, commit bribery, and engage in book-

making on the part of each of the petitioners.

As was correctly held by the Court of Aout} in the

present case: _

“The evidence above summarized is amply suf-

ficient to support the finding of the existence of

the conspiracy charged. A conspiracy may. be es-

tablished by circumstantial evidence. (People v.

Steccone, 36 Cal.2d 234, 237-238 [223 P.2d 17];

- People v. Salani, 218 Cal.App.2d 835, 839 [32

Cal.Rptr. 592].) It is not necessary for the People

to show that the defendants actually met and agreed -

together: to perform the unlawful acts. (People

v. Stéeccone,.supra, p. 238.) From their acts and

conduct in mitually carrying out the common il-

legal purpose, the existence of the conspiracy may

be inferred. (People v. Danielson, 203 Cal.App.2d

. 498, 505 [21 Cal.Rptr. 469].) The circumstances

here clearly indicate the existence of and the carry-

ing out of a scheme to give protection to certain

bookmakers through the bribery of police officers.

The involvement of each appealing defend§mt in the

conspiracy was plainly shown.” People v. Canard,

supra, 257 A.C.A. 500, 516-17, (1967) [65 Cal.

Rptr. 15, 25].

ae :

Ms . eee

THE TRIAL COURT DID NOT ERR IN EXCLUDING

EVIDENCE AS TO THE DISPOSITION OF THE

CASES IN WHICH BOOKMAKING ARRESTS

WERE MADE DURING THE INVESTIGATION

IN QUESTION.

Petitioners contend that the trial court committed

‘prejudicial error in denying the defense the right to in-

troduce in evidence the disposition of those cases in

which arrests were made on March 20, 1964, for book- .

making in the course of the invéstigation in question..

(Petition, p. 42.)-

Respondent submits that this obihiation. too, does

not involve a substantial federal! question.

Under California law the determination as to whether

offered evidence is relevant‘ is a matter for the trial

court’s discretion. People v. Tahl, 65 Cal. 2d 719,

740 (1967) [423 P.24 .246, ig cert. dented, 389

U.S: 942.

The scope of the trial court’s ‘discretion ¥ was broad, |

and it is clear from the opinion of the Court of Appeal

that it was not an abuse of this discretion for the trial

court to exclude the evidence in question (Rep. Tr. pp.

1703, 1706) : *

| “Defendants predicate erfér on the trial court’s

denial of their request to introduce evidence con-

‘cerning the ultimate dispositions .of .the various

cases in which arrests were made for bookmaking

during the March 20th raids. The court correctly

ruled against. allowing in such evidence. The re-

sults of the investigation were admitted -to show

the nature of the places the telephone numbers of

which Stafford and De Maddalena had in. their

—59— 3

-notebooks. Whether the occupants of those places

were subsequently tried and convicted of bookmak-

ing (or were acquitted, or had their cases, dis-

missed), depended on such extraneous factors as

the technical rules of evidence or whether guilt was’

proven beyond a reasonable doubt, matters having _

-no relevancy to the issues of this case.”

People v. Canard,: supra, 257 A.C.A. 500, 521

(1967) [65 Cal. Rptr..15, 29]. .

- Conclusion

- For the foregoing reasons the Petition baa’ Writ of. |

Certiorari should be denied.

‘Respectfully submitted,

_ Tuomas C. Lyncu,

Attorney General,

“WILLIAM E. JAMEs,

Pp GR cea Assistant Attorney General,

RONALD M. GEORGE,

Deputy Attorney General,

Attorneys for Respondent.