Petition for Writ of Certiorari — Shapiro v. California

he REA PATS

ones oe US.

SUPREME COURT, U. S. =

DEC 20 1969

IN. tHe | JOHN E. BAVIS, CLERK

| SUPREME COURT OF THE UNITED STATES

4

October “OVE 1969

( | No.

SAUL SHAPIRO,

Petitioner,

VSe

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

LUKE McKISSACK

Attorney at Law

,6430 Sunset Boulevard

“Suite 521

Hollywood, California 90028

Télephone: (213) 466-7331

Attorney for Petitioner

SUBJECT INDEX

Opinion PRLONS LEME RS SAU HS CHEN AS 2

Groynds on waion the jurisdiction

of this Court is invoked..cccece

Questions presented for Review...e.

2

3

Constitutional Provisions Involved. 4

Statement of, the CASC~cecccccccccce 4

2

Statement of FaCctScccccccccccvecces

Reasons for Granting the Writ. sdecs 11

Evidence was illegally seized from

Petitioner without probable cause

for an arrest and without a basis

for stopping and frisking-

Petitioner, and was a direct re-

Sult of overbearing and harassing

action by the police, contrary

to the guarantees of the Fourth

and Fourteenth Amendments to the

yUnited States Constitution. The

arrest and prosecution based on

said illegal seizure are null and

VOLE se ces eees ee etcecerecvecdheseve Le

pa

The wicuuivadieres record establishes

that Petitioner committed no crime.

“he conviction based on this

evidence is contrary to guarantees

of due process of law contained in

the Fourteenth Amendment to the ‘

United States Constitution.eccccce 2

SUBJECT \INDEX

Cone aes oe cs cee ee ca eee eens:

INDEX TO APPENDIX

Appendix "A"

- United States Constitution,

Amendment LViccwccccccccccces

United States Constitution,

' Amendment DiVeowece es ecrceesese

California Penal; Code, Section

-12031 :

TABLE OF ‘AUTHORITIES

Page

Badille wi Saat ce Court (1956)

al. 2d 269

. Bailey v. Toaffe - any

29 Cal. 423 x o ; 31

Gescon ve Superior Court, County ,

of Los Angeles (1959) /

al. Appe 2d 356

337 Ped 201 24

oe

People v. Garrett (1965) —

ie 7 Cal. App. 2d_.701

| 47 cal. Rptr. 194 ae

. People v. Gibson (1963)

mee280. Cale App. 24.15

33 Cal. Rptr. 775 | aan 14

Gossman v. Gossman (1942)

“52 Cal. ore ed 164. . Ami, wis

\ es eerie eo Bae

126 P2a 17

In re ‘Harrie (1961) | }

al. oa 879 :

16 Cal. Rptr. 889 ~ 335 34

People v. Henze. (1967)

S55. cal App. 2d 986 ~ ; a

61 Cal. Rptr. 545. ‘15, 20

People ve Macias (1960)

180 Cal’ ig LoS

Pen le v. wisveloin (1963)

Es Cal. ca 448

30 Cal. Rptr. 18 . 20,21

People v. iiora : .

222 Cal. App. 2d 743 :

35 Cal. ntptr.e 4 32 LD, 20

111°

«-

TABLE OF AUTHORITIES |

-

People ve. Russel (1968)

Es AzC. 109 oe

70 Cal. Rptr. 210

People v. Stewart (1966)

Sat Cal. App. 2d 509

50 Cal. Rptr. 630

ibron v. New York (1968)

beh ——

U.S.

88.S. Ct. 1889

Te ve Ohio (1968)

Be U.5. 1

8 S. Ct. 1868

IN THE

SUPREME COURT OF THE UNITED STATES

October Term,1969

No.

f

i

&

f

§

E

?

i

SAUL SHAPIRO,

Petitioner,

VSe

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO.

THE APPELLATE DEPARTMENT OF THE . :

SUPERIOR COURT OF HE COUNTY OF :

‘LOS ANGELES, STATE OF CALIFORNIA

Petitioner, SAUL SHAPIRO, respectfully

SPS LR LEI PE EE

prays for a Writ of Certiorari to the

Appellate Department of the Siunerior Court

. for the County of Los Angeles, State of

‘ California, to review its judgment affirming

Petitioner's conviction and the imposition

_of a fine of Two Hundred Fifty ($250.00)

Dollars in the Municipal Court of the Long

Beach Judicial District, County of Los

Angeles, California.

4 |

OPINION BELOW

Trial in the Municipal Court was by the

Court sitting without a jury. The Appellate |

Department of the Superior Court of the County

of Los Angeles affirmed the conviction with-

out opinion.

GROUNDS ON WHICH THE JURIS-

DICTION OF THIS COURT IS

INVOKED

The highest court of this State with

jurisdiction to review the judgment of con-

viction herein is the Appellate Department

of the Superior Court for the County of Los

Angeles, State of California. The order of

the Appellate Department affirming the judg-

ment of the Municipal Court was made on

September 10, 1969. The order of the Appell-

ate Department denying Petitioner's Petition

for Rehearing and/or Certification to the

oa,

Court of Appeals for the State of California

was made on September 23, 1969.

The statutory provision believed to

PERE? EAP BE ETM ar

t a

confer on this court jurisdiction to review

’ the judgment in question by Writ of Certiorari

is 28 U.S.C. Section 1257 (3).

os

NEVE LTA TELLER OME

QUESTIONS PRESENTED FOR REVIEW

| a

Was Petitioner's conviction based upon

evidence seized from Petitioner in an

illegal search and seizure, without a pro-

PLATENS RIEL

bable cause for arrest or detention and

"frisk", and as a direct result of over-

Sparing and harassing actions by the police,

contrary to the guarantees of the Fourth :

and Fourteenth Amendments to the United |

States Constitution?

Il

EIS ee ee Ot te

Did Petitioner's conviction based upon

evidence which was insufficient as a@ matter

of law to sustain the conviction, deprive

Petitioner of due process of law guaranteed ~

by the Fourteenth Amendment to the United

-3j-

States Constitution?

' CONSTITUTIONAL PROVISIONS

INVOLVED

Involved are the United States Constitu-

tion, Amendments IV and XIV. ;

STATEMENT OF THE CASE

saul Shapiro, Petitioner herein, was

arrested on November 27, 1968. On November

29, 1968, a complaint was issued charging

him with a violation of Penal Code Section

21031, carrying a loaded firearm in an

automobile. :

On February 20, 1969, defendant's motion

_to suppress the ‘evidence under Penal €ode

Section 1538.5 was heard and denied. On

that same date Petitioner was tried by the

Honorable Kenneth E. Sutherland, a Sedge of

the Municipal Court of the Long Beach’

Judicial District, sitting without a jury.

Petitioner was found guilty and a probation

and sentence hearing was set Por Marck 13,

1969. A fine of Iwo Hundred Fifty ($250.00)

Dollars, payable through the Probation Depart-

Stile

FERRE ON TR een a .

ment was levied.

’

. Petitioner duly filed a Notice of Appeal.

STATEMENT OF FACTS

Officer D. L. Brown testified for the

People ea follows: e :

We were dispatched to 2677 East 56th

Way, in regard to a possible burglary and

possible we cattery breaking in and armed.

When officers arrived at the scene, they

observed Defendant Shapiro walking eastbound

from the apartment comnicx past the officer's.

car to,Shapiro's car. Shapiro entered his

automobile and seated himself behind the-

steering wheel. Brown at this time asked for™

identification which was produced. Shapiro

was then asked if he had any weapons on: his

person and said no. Officer Brown then asked

Shapiro to step from the car so that he

could be searched. At that point Officer

Brown observed him to slide his right hand

under his suit-coat and reach toward the left

side of his waistband. Suspect continued

in his attempt to remove the gun from his.

waistband. Officer Brown, with the assist-

ance of Officer Thomas, overpowered the _

defendant. Officer Brown inspected the

weapon and observed that there were five

_(5) live rounds in the clip of the belt.

The Prosecution rested.

The Petitioner testified in his own

defense:

He and his wife Linda, who had been

married for slightly over two years, resided

at 2677 East 56th Way in Long Beach and

had done so for approximately one and one-

half years. Due to some marital aisngree-

ment the Petitioner took up temporary residence

elsewhere while maintaining the preponderant

majority of his belongings at the 56th Way

address; he also continued to receive mail

there. Prior to the date of arrest, November

27, 1968, he and his wife discussed reconcili-

ation. Indeed, they had made plans to join

his wilc +«latives for Thanksgiving Dinner

and, in fact, iad made plans to spend the

holiday at a cabin in the ‘*sert. Shapiro,

etc. PE eg) ae 2 AS i Ril BE Rie oy

in preparation for this holiday retreat,

loaded his automobile with, among other

things, an ice chest, a 22 calibre rifle and

LI I TI eS

¥s .

a 25 calibre automatic. It was his practice —

to target shoot while staying at this cabin.

After the aforesaid understanding by the

spouses had been achieved, he went shopping.

In Zody's advertising Shapiro noted some

women's apparel in which he thought his wife

previously had expressed an interest. _ There- ®:

upon he returned to the house wherein his 7

wife was residing to ask her how many of the

particular items mentioned aie she desired.

He arrived at the domicile shortly after

10:00 P.M. and knocked at the door. The

kitchen light was on at the time Shapiro

knocked at the door and received no answer.

His wife's ane ane parked in front of the ;

residence. It was the normal vractice of

both Shapiro and his wife to leave the

kitchen light on when they were out. He

surmised that his wife was visiting across

the street where her closest girl friend

lived.

a

\

\

nging the doorbell, Shapiro saw

a shadow i side the house and, due to the |

‘fact that on prior occasions his wife. had

awakened him with "burglar scares", he

thought a burglar might have been in the

house. Thus, he réturned to the trunk of

his car and removed the 25 calibre pistol.

As he returned to the house the kitchen light

went out. At this juncture he, while un-

soulitabia keyed up, was fearful of what was

transpiring within the residence. Shapiro

intermittently rang the doorbell but received

no answer. He then left the premises for

his automobile when a police ’car drove up.

A police officer shined the light in his

face and queried, "Do you live here, Sir?".

Shapiro responded that he did and identified

himself. The officer apologized for his

inconvenience and Shapiro climbed into his

automobile. ”~

As Shapiro was preparing to leave, the

driver of the now parked police car asked

nim, "Do you eebal Rakes firearms?" Shapiro

2»

answered, "No". The officer insisted on look-

ing to ascertain whether in fact Shapiro was

armed. Pursuant to the officers design, he

steadfastly insisted that Shapiro step out

of the ax Shapiro at that moment realized

that the pistol would be visible to the

officer after he exited from the car and

attempted to discard the pistol prior to

that exit. The officer, however, Cumann tay toner ss

weapon and placed him under arrest.

Petitioner's wife, Linda Shapiro, was

called as a witness for the defense and

testified:

That she was the wife of the Petitioner;

that she and Petitioner had been married for

slightly over two years, resided at 2677 East

56th Way in Long Beach and had done so for

approximately one and one-half years. Due to

a marital disagreement her husband had taken

temporary residence elsewhere while maintain-

ing the preponderant majority of his belong-

ings at the 56th Way address. Prior to the

date of arrest, November 27, 1968, she and her

ets

husband had discussed reconciliation. They

had aiao made Thanksgiving Dinner plans and

had further planned to spend the holiday

ata cabin in the desert; iat Defendant

routinely did target shooting when staying

at the desert putin? She further testified

that shortly after 10:00 P.M. while bathing

she heard a knock at the door and later

saw Shapiro with what might have been a

pistol at the.door, turned off the light,

and called the police.

On rebuttal, Linda Shapiro testified

for the prosecution that she called the

police because she sit afraid. }

Officer M. Kinrade testified that Linda

Shapiro told him that she and the suspect

had filed for divorce and that the suspect

had repeatedly threatened her life and her

child. Officer Kinrade further testified

' that Linda Shaviro told him that the Defendant

had been pounding on her door for an hour and

a half and that she felt he might have a gun.

She further stated that Defendant told her -

if she ever called the police, he would kill

her.

The court found Petitioner guilty based

on the fact that he had not presented a

believable defense to the charge.

REASONS FOR GRANTING THE WRIT

‘This is a case in which the evidence — a

loaded vive arm was seized from Petitioner

prior to arrest. After the evidence was dis-

covered Petitioner was arrested, prosecuted

and convicted of a Violation of Penal Code

Section 12031, carrying a loaded firearm in

an automobile. Carrying a loaded firearm in

an automobile is a violation of the law only

if the carrying. of the firearm does not come

within one of the exceptions set forth in

Penal Code Section 12031. Petitioner con- |

tends that the seizure of the loaded gun

was made without probable cause and the gun

should not have been admitted into evidence.

Petitioner further contends that the uncon-—

tradicted record establishes that he was

Garrying a firearm within some of the exceptions

-ll-

PTE LIE TY SOS

PRESANENS ME RE WERT WT TH

:

provided by Penal Code Section 12031 and that

his conviction is therefor as a matter of

law, unsupported by any evidence. These two

4

questions will be discussed »elow.

I

EVIDENCE WAS ILLEGALLY SEIZED FROM

PETITIONER WITHOUT PROBABLE CAUSE FOR

AN ARREST AND WITHOUT A BASIS FOR

STOPPING AND FPRISKING PETITIONER,

AND WAS A D RESULT OF OVER-~ ;

BEARING HARASSING ACTION BY THE

POLICE, CONTRARY TO THE GUARANTEES

OF THE POURTH AND FOURTEENTH AMEND-

MENTS TO THE UNITED STATES CONSTITU-~

TION. THE ARREST AND PROSECUTION

BASED ON SAID ILLEGAL SEIZURE ARE

NULL AND VOID.

The facts leading to the seizure of

Petitioner's firearm are simple. The police

went to an apartment complex located at

2677 East 56th Way, Long Beach, to investigate

"a possible burglary and a possible ex-

1

husband breaking in and armed", Vis. 2/12].

On arriving they observed Petitioner seat him—

self behind the wheel of an automobile.”

Officer Brown asked for identification which

Petitioner gave him. He asked Petitioner

whether he had any firearms and Petitioner re-

piaec "No". at this point, prior to arrest-

i eee

ing Petitioner, Officer Siown demanaed the.

he be permitted to search Petitioner. The

ee

. -

officer had no basis for arresting Petitioner,

oe ee

and no reason for searching him. As a

consequence of the officers illegal demand,

Petitioner's gun was seized and Petitioner |

arrested, The seizure, followed by Petitioner's

arrest was illegal. .

The legality of the seizure in this

case depends on whether the police had probable

cause to arrest Petitioner before evidence

of the loaded gun was uncovered.

1/ “"S" refers to the Engrossed Settled State-

ment on appeal. The first number is the

page thereof, followed by a slash bar and

the line.

=~] j- Y

- ee ee ~

_ 294, 294 P2d 36, and cases there cited)

“If, before a search is made, the

circumstances are such as to justify

the officer in making an arrest, it is

immaterial whether the search precedes

or’ follows the arrest. (See Willson v.

Superior Court (1956), 46 Cal. 2d 291,

So here, it is immaterial as to whether

defendant 4 arrested the moment he

- enterga the jpolice car or later. The

t ernéial- ‘question is, at the moment the

- officers started to search the car did

they have probable cause for making

an arrest of defendant? The determina—

tion of this question must be based upon

the knowledge that the officers then had.

What they discovered in the search can-

not be considered. (See People v.

‘Mickelson, supra, 59 A.C. 465, 471, 30

Cal. Rptr. 18, 380 P2d 658; People v.

Brown (1955) 45 Cal. 2d 640, 643-644,

290 P2d 538)" People v. Gibson, 220

Cal. App. 2d 15, 33 Cal. Rptr. 775

(1963) (Emphasis added).

Examining the evidence it is apparent,

in the first instance there was no basis for

detaining Petititioner. By the testimony

of the police, themselves, Petitioner merely

walked from the apartment house complex to

his car, and seated himself behind the

driver's wheel. _ People v. Henze, 253 Cal.

App. 2d 986, 61 Cal. Rptr. 545 (1967),

defines the circumstances for a lawful de-

tention: |

"First, there must be a rational

suspicion by the peace officer that

some activity out of the ordinary is

or has taken place. Next, some indi-

cation to connect the person under |

suspicion with the usual activity.

Finally, some suggestion that the activity - -

is related to orime.* (61 Cal. Rptr. ,

at 547). ‘

In the instant case the police did not

have a rational suspicion that some unusual

APE LAAN ea SUIT ts AN alates RAIS

‘activity had taken place. They were in

the apartment complex because of a report

of. possible unusual as well as criminal

activity. There was, according to the record,

nothing "to connect [Petitioner] with the

unusual activity. Certainly, the mere fact

that a person walks from an apartment complex

to his car is not sufficient reason for. the

police to stop him. If it is, every individual

who has the audacity to approach his pared”

car (at a reasonable hour in the evening)

may be subjected to police interrogation

simply because someplace in the neighborhood

someone has’ summoned them to find out if

?

there possibly has been a crime committed. And

*

.. everyone may be subject to detention regardless

of any apparent connection with criminal |

activity. It is submitted that "such is

fortunately not the law". People v. Moray,

222 Cal. App. 24 743, 35 Cal. Rptr. 432, 434.

The evidence which was seized was the. product

: of the unlawful detention, and consequently

‘was inadmissible in evidence.

Assuming, arguendo, that Petitioner's

detention was lawful, there was no basis

for ordering him to submit to a search. This

Court recently enunciated the rules for

a constitutionally permissible search during

a detention. The first requirement is the

presence of conduct which leads a police

officer reasonably to conclude that, in the

light of his experience, there may be

criminal activity afoot. Next, the officer

must reasonably believe that the person with

whom he is dealing is armed and presently

dangerous. And finally, if his detention

of the suspect and his. reasonable inquiries

do nothing to dispel his initial fear, the

officer may conduct a narrowly defined,

limited search. Terry v. Ohio, $392 U.S. l,

88 S. Ct. 1868 (1968).

In the case at bar, the police did not

have a basis for the reasonable belief that

Petitioner was ed and ovenentiy dangerous.

As has been pointed out, Petitioner was

doing nothing unusua} or suspect. The

police had not observed anything to make

them think he was armed. At most, they had

a report from his wife that she felt

Petitioner might have a gun. The interro-

gation which the police conducted while

Petitioner was detained entirely comported

with innocence. It cannot be considered

"nothing" to dispel the officers’ fear. On

the contrary, Petitioner did everything

possible to allay the officers' fears. The

warning in Sibron v. New York, 392 U.S. 40,

88 S. Ct. 1889 (1968) is applicable here:

"The police officer is not entitled

to seize and search every person whom

he sees on the street or of whom he makes

inquiries. Before he places a hand on

the person of a citizen in search of

anything, he must have constitutionally

adequate, reasonable grounds for doing

S0. In the case of the self-protective

search for weapons, he must be able to

point to particular facts Prom which he

reasonably inferred that the individual

-18— 1

was armed and dangerous." (88 8. Ct. at

1903) (Emphasis added).

The police here had not the slightest grounds

for the illegal search of Petitioner. There

ephemeral suspicions are not the "“constitu-

tionally adequate" grounds the Fourth Amend-

ment requires.

Irrespective of the propriety of the

detention the seizure of the avidedee was with-

out probable cause for an arrest. ‘The record

shows that there was no evidence that Petitioner

had probably committed a felony. The only

evidence that the. police had was that of a

possible burglary or a possible ex-husband

breaking in and armed. The record does not

show that in fact there had boon a burglary

which they were going to investigate, or

that an ex-husband had isuteans in and threatened

with guns or done anything of that sort.

There is no evidence that the police had a

reasonable basis for believing a felony had ‘

been committed. Such a reasonable belief is |

an essential part of probable cause. At the |

ai Ge

—_—

time they stopped Petitioner the police had

nothing more than a basis for an investigation

to ascertain whether a crime had been

committed. Th lone does not provide a

basis for an a, ve Moray, supra;

People v. Henze, supra.

Before discovering the gun, the officers

did not have the faintest suspicion that

Petitioner had probably committed the non-

existent felony. The officers saw Petitioner

doing absolutely nothing more than getting

into his car at perhaps 11:00 o'clock at

night. They approached him and asked him for

identification. He immediately cooperated 7

and identified himself. These are the

actions of a Selietatale samcoent person and ee

provide no shacm peng for an arrest. The

leading Ca fornia Case of People ve Mickelson, ..

59 Cal. 448, 30 Cal. Rptr. 18 (1963),

plainl satabiisifee taateven far more than

this ib insufficient to give probable cause

for an arrest. In Mickelson police officers

had factual information concerning. an actual

=20—

robbery of a market. They had a description

of the robber, a description which fit the

defendant. They discovered the defendant

a short time after the robbery in the general

vicinity, driving under what they considered

to be suspicious Sipcunstadiee. However when

they stopped to investigate, the defendant

was completely cooperative identifying him-

self and explaining his presence in the

neighborhood in a manner which comported with

innocence. The Court held that while the :

police were within their authority to stop

the defendant and interrogate him with re-

gard to the robbery they did not have probable

cause for his epreet;

In the case before this Court there is

not even as much evidence as there was in

Mickelson. Here there was no reported

felony; there was no "suspicious" circum-

stances, only a possible crime whose very ._

existence had not yet been ascertai ied.

Petitioner was completely cooperative with

‘the police when he was discovered doing the

entirely innocent act of getting intovzhis

car and sitting behind the driver's wheel.

Because there was no probable cause for

Petitioner's arrest, the police had no

authority to demand that he submit to a

search. Despite the fact that the police

had no reason whatever for searching

Petitioner, Officer Brown insisted that

peEitionex step from his car so that he could

be searched. [S. 2/22; 4/24-28]. In

response to the police demand, Petitioner

attempted to discard his gun [S. 4/30]. The.

police then seized the gun from him [s. 2/29;

4/32]. It is submi6ted tat: the discovery

of the gun, and its jeizure from ee

was a direct result of the illegal Ca

of the police that Petitioner caenet a

search.

The case of Badillo v. Superior Court,

46 Cal. 2a 269, 294 P2d 23 (1956) is instruct-

ive. In Badillo narcotic agents and the

police officers went to the Petitioner's

home. They knocked at the back door, which

was locked, and received no Fesponse,. |

Officers forced the door open and entered the

|

22a

house. Shortly thereafter Petitioner,

followed by one of the police officers, went

out the front door and threw a package of

heroin toward a narcotic agent, who recovered

it. The heroin formed the basis for a |

prosecution against Petitioner. The officers

did not have a search warrant and did not

testify that the entry into Petitioner's

home was pursuant to probable cause for an

arrest. Accordingly, the California Supreme

Court concluded that the entry into the house

was unlawful. The people argued that when

Petitioner threw the heroin away he had aban-

doned it and therefore could not object to

its use against him. The California Supreme

Court said:

"it clearly appears ...that defendant's

flight out the front door and attempted

disposal of the evidence was the direct

result of Officer Getchell's illegal

entry, and accordingly, the evidence

was obtained in violation of con-

_

stitutional guarantees." (294 P2d at 25)

(Biphasit added)...

-Badillo estabiished for Cajifornia, or

the eotistitutional Seige eae that evidence

which 4n. ¥evealed by its possessor as a

= direct result of the illegal activity of

yy s -

the police, is evidence obtained in

+.

violation of the Fourth Amendment. The

principle first enunciated in Badillo was

applied in Gascon v¥. Superior Court, County

of ‘Los Angeles, 169 Cal. App. 24 Soy 331

P2da 201 (1959) on facts quite similar to those

before the court herein. ‘In Gasoon police |

approached a parked car and questioned its

occupant who “stated ‘that her boyfriend had

gone to the liquor’ store to purchase some

SP TODRTS OGRE DD a at ae a eal nee cei enti

cigarettes. Petitioner approached the parked

car and the police intercepted him. They

questioned him and ascertained that he had

PAIS APR TRIOS BEY

SEN

been to the liquor store to purchase some

ER eA PTC NS

cigarettes; what his name was; and that he

had been arrested before. He appeared t

nervous while being questioned. After question-

ing, the officers told Petitioner they were

Din

going to search him, whereupon he attempted

to flees He was overtaken from 25 to 35

feet away but by then he had managed to

throw some objects away. In one of the

discarded packages the polic founda mari-

juanae The®court held that the marijuana

had been obtained as the result of illegal

police ‘procedure, wines nies

“Te probable cause had existed for

the petitioner's arrest it would be

of no moment that they attempted a

search of defendant's person before

making the arrest rather than after-

ward. People v. Simon, supra. There

being no probable cause for arrest, if

the officers had carried out their

threat to search petitioner's person

and had found the contraband in the

. °

process of the search, there would be

no question but that the evidence was’ -

illegally obtained and, therefore,

inadmissible. People ve. Harvey, supra;

People v. Simon, supra; People v. Brown,

aie

DANA PENT AVE DIRT OS

Le ORE Sk ecu

*

supra.

In the present case petitioner's flight

was caused by the threat of the officers to

illegally search his person which they could,

without question, have’ put into effect, and

the discarding by the petitioner of the

evidence upon his person ‘was but a areca

of the threat. We cannot distinguish this

case in principle from that of Badillo v.

Superior Court, 46 Cal. 2d 269, 294 P2d 23.

HH HH | |

in the cited case as well as in the

case at bar, the petitioner was fleeing from

the attempted illegal invasion of his

constitutional rights (Fourth Amendment,

U. Se Const.; Cal. Const. Art. I, Sec. 19),

and in each case, during the flight, he attempt- ee

ed to dispose of the evidence which the

officers would have obtained had they been

“se to complete the threatened unlawful act.

In each case the evidence, being the product

of the illegal acts of the officers, was

illegally obtained." (337 P2da at 202).

-

whe

See also People ve Stewart, 241 Cal. App.

- 2a 509, 50 Cal. Rptr. 630 (1966); People Ve

oa

4

Garrett, 237 Cal. Abp. 2d 701, 47 Cal. Rptr.

, 194 (1965); Paople v.e_Macias, 180 Cal. App.

2d 193, 4 Cal. Rptr. 256 (1960).

In the case at bar the police. demanded,

inpintibeaeig that Petitioner submit himself

to a search. As a result of this overbearing

and overreaching order, Petitioner revealed

a firearm which the police seized. This

seized evidence, illegally obtained as a

result. of the overbearing action of the

police, became the basis for Petitioner's

atrest, ‘prosecution and conviction. As in

the cases cited above, it is submitted that

the evidence, being the product of-the illegal

acts of the otivere; was illegally obtained,

inadmissible in evidence, and rendered the

conviction null and void. ,

II

THE UNCONTRADICTED RECORD ESTABLISHES

THAT PETITIONER COMMITTED NO CRIME.

Sy

RA °

THE CONVICTION BASED ON THIS

"EVIDENCE IS CONTRARY TO GUARANTEES

OF DUE PROCESS OF LAW CONTAINED IN

‘THE FOURTEENTH AMENDMENT TO THE

‘ UNITED STATES CONSTITUTION.

The uncontradicted record in this case

is that Petitioner and his wife had planned

to spend the Thanksgiving holiday at a

cabin in the desert. Petitioner routinely

‘did target ‘ghootine white. staying at this

cabin. In- preparation for the holiday he had

loaded his automobile with, among other |

things, an icé chest, a 22 calibre rifle ana

a 25\dalibre automatic. [S. 3/18-20; 5/15-17]

Petitioner took his gun-out of the car i

because he feared for his wife's safety.

[S. 4/5-13]. ‘The uncoritradicted evidence

brought Petitioner within the exceptions to

Penal Code Section 12031, which provides

"(a) Except as provided in subdivision

‘(b), every person whic carries a loaded

firearm on his person or in a vehicle,

-28-

while “in any public: place or on any

public street, in an incorporated city

or in any public place or on any public

street in a prohibited area of unin-

corporated territory is guilty of a

‘misdemeanor. . =

(bo) Subdivision (a) shall not apply

to any of the following: **** (4)

Persons who are using target renges for

the purpose of practice shooting with a

firearm, or who are members of shooting

: ’

“£ilubs while hunting on the premises of

such clubs, ****

_(h) Nothing in this section is intend-

ed to preclude the carrying of any

loaded firearm, under circumstances

where it would otherwise be lawful, by

‘@-person who reasonably believes that

the person or property of himself ~~

another is in immediate danger and that

the carrying of such weapon is necessary

for the preservation of such person or

property."

v

The trial judge entirely disregarded

’ the uncontradicted record, and found that Peti-

tioner had not presented a defense to the |

charge of violating Section 12031 of the

Penal Code. It is submitted that the court

abused its discretion when it disregarded

the entirely uncontradicted record.

The discretion of the court to disregard

evidence is not an unbridled discretion. The

“concept of judicial discretion means more

than wholly arbitrary decision making power.

“We have explicated the concept of

judicial discretion on innumerable

occasions and in a variety of factual

contexts. Obviously the term is a

broad and elastic one (See 27 C.J.S.

pe 292) which we have equated with “the

sound judgment of the court, to be

exercised according to the rules of law"

(Lent v. Tillson (1887) 72 Cal. 404,

422; 14 P. 71, 78)." People v. Russel,

69 A.C, 189, 70 Cal. Rptr. 210, 215(1968).

While it has been’said that the only

2 | -30- ¥

restraint upon the exercise of discretion

is that it not be abused, it is plain that —

"abuse" has a legal meaning.

"(We have said: "tIn i legal sense

discretion is abused whenever in the.

exercise of its discretion the court

exceeds the bounds of reason, all of the

circumstances pefors it being considered. '"

(State Farm, etc., Ins. Co. v. Superior

Court (1956) 47 Cal. 2d 428, 432, 304 P2a

L352 auiosisee Berry v. Chaplin (1946)

74 Cal. App. 2d 669, 672, 169 P2d 453)."

Historically, the exercise of judicial

discretion has not been unfettered. In the

early case of Bailey v. Toaffe, 29 Cal. 423,

at pe 424 the California Supreme Court

delineated the limits of judicial discretion

as follows:

"The discretion intended, however, is

not a capricious or arbitrary discretion,

but an impartial discretion, guided and

controlled in its exercise by fixed

legal principles. It is not a mental

Pree a Wain

discretion to be exercised ex gratia,

but a legal discretion, to be exercised

in conformity with the spirit of the

law, and in a manner to subserve and

not to impede or diteat the ends of |

substantial justice."

More recently the court has denuvibed

the bounds of duddcdel discretion in a manner

similar to the definition given in the

Bailey case.

"tThe word imports the exercise of

discriminating judgment within the

‘bounds of reason. Discretion in this

connection means a sound judicial dis-

_enetion, enlightened by intelligence

and learning, gentrol Ved. by sound

principles of law, of firm courage

combined with the calmness of a cool

mind, free from partiality, not swayed

by sympathy nor warped by prejudice

nor moved by any kind .of influence .

save alone the overwhelming passion to

do that which is just.'" Gossman v.

. /

SI id ae,

&

Gossman, 52 Cal. App. 2d 184, 195,

126 P2d 178, 184 (1942).

From tiie definitions of judicial discretion

it appears that it is properly exercised

only by a judicious application of law to

Caste reasonably considered. There is no

room in the exercise of sound judiciai dis-

cretion arbitrary or capricious disregard

of evidence. In the Russel case the trial

court was castigated for abusing its discre-

tion to receive evidence when the court

rejected an offer of relevant evidence. In

the case of In re Harris, 56 Cal. 2d 879,

16 Cal. Rptr. 889 (1961) Petitioner was.

arrested for allegedly selling obscene material.

At the trial he offered evidence that the

‘material: petitioner sold was within contem-

porary standards, and therefor not obscene.

The trial court refused to admit the evidence.

On a Writ of Habeas Corpus the California

Supreme Court held that it was a violation

of due process to reject the evidence.

In the instant case, the trial court

ie

BR INS AN TEND a ET IOS pee gee PEM PR Perez: a a

¢. :) . roa x x m RES SAS rd aS x! Ss

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see

hi al

‘received evidence that Petitioner was going

target shooting, and routinely did so. The

court also received evidence that Petitioner

was carrying his gun beceuse he feared for

| the Safety of his wife. The court thus heard

testimony which brought Futitiones oie the

ee ae Penal Code Section 12031 (b)

. aaa

(4) and (h).. The evidence was uncontradicted; |

yet it was rejected. No reason appears. The

record contains no evidence of illegality other

than the possession of the loaded gun. No

evidence that Petitioner was not within the

Penal Code exception is in the record. In

rejecting the testimony of both Petitioner

and his wife the court did not choose to

believe the testimony of one witness rather

than another who testified to different

facts. The court totally rejected the only

svitinces salevant to the éxbeotion, In this

sense it was-no different than if the court

had refused entirely to hear evidence that

Petitioner came within subdivisions (b) (4) —

and (h). Cf. In re Harris, supra. The trial

court decided this case solely on the basis

©

of evidence of possession of a loaded fire-

arm. But that is not the crime encompassed

by the law. It is unexcused possession of

a loaded gun which comprises the violation.

The court cannot rejett evidence of excused

possession-unless there is a basis in the

record for deciding that ‘the possession is

contrary to law. To conclude that Petationes

had not presented a believable excuse based

on uncontradicted evidence of an wound.

made a nullity of subdivisions (b) (4) ana)

(h) was an arbitrary and capricious abuse

of judicial discretion, and deprives

7

‘

‘Petitioner of due process of law.

"Certainly a decision rendered in

disregard of’ fundamental facts upon

which the parties were relying. or based *

on facts not adduced at the trial and

unregulated by those principles which

are recognized as being inherent in

- the true concept of judicial discretion

would not be a judicial decision in the

true sense." Gossman v. Gossman, supra,

126 P2d at 184-85.

=-35=

CONCLUSION

For the foregoing reasons the within

was arent git

Petition for Writ of Certiorari should be —

granted.

eS Bee Ce Pe Ee 4

Respectfully submitted,

LUKE McKISSACK

Attorney for Petitioner

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APPENDIX A is SNe / ‘

UNITED STATES CONSTITUTION

AMENDMENT IV : }

{

The right of the people to be secure

in their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no Warrants shall

issue, but upon probable cause, soppuetved

by Oath or affirmation, and particularly

describing the place to be searched, and

the persons or things to be seized.

UNITED STATES CONSTITUTION

AMENDMENT XIV

Section l. All persons born or

naturalized in the United States, and subject

to the jurisdiction thereof, are citizens

of the United States and of the State wherein

they reside. No State shall make or enforce

any law which shall abridge the privileges

or immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property, without

a

due process of law; nor deny to any person,

within its jurisdiction the equal protection

of the laws. —

CALIFORNIA PENAL CODE

~ SECTION 12031

(a) Except as provided in subdivision

(b), every person who carries a loaded fire-

at os his’ person or in a vehicle while in

any public place or on any public street in

an incorporated city or in any public place .

or on any public street in a prohibited area

of unincorporated territory is guilty of

a misdemeanor.

(bo) Subdivision (a) shall not apply to

any of the following:

(bo) (4) Persons who are using Scone:

‘ranges for the purpose of practice shooting

with a firearm, or who are members of shooting

clubs while hunting on the premises of such

clubs.

(n) Nothing in this section is intended

to preclude the carrying of any loaded

ee Ste

“AEN TNR

®

firearm, under circumstances where it would

otherwise be lawful, by a person who reasonably

believes that the person or property of himself

S

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or another is in immediate danger and that the

carrying of such a weapon is necessary for

the preservation of such person or property.

STATE OF CALIFORNIA ) q

° ss ‘

COUNTY OF LOS ANGELES )

9

I am a citizen of the United States and

a resident of the County aforesaid; I am over

the age of eighteen years and not a party

to the within entitled action; my business

address is 6430 Sunset Boulevard, Suite 521,

Hollywood, California 90028. @n’ December

18, 1969, I served the within Petition for

Writ of Certiorari on the plaintiff and

respondent in said action, by placing a true

copy thereof enclosed in a sealed envelope

with postage thereon fully prepaid, in the

United States mail at Los Angeles, California,

addressed as follows:

Attorney General

217 West lst Street

Los: Angeles, California

District—tttorney EY Serece: 4)

435 “ih ee aC 07 Ruephlce S/H, aa

Long Beach, California

Clerk, Superior Court, Gpl@e & be pe.

abi Bia elit eta gaat I AHtll &-

California

Wor 4.644 0et

Clerk, Court of Appeal

217 West First Street

Los Angeles, California

gee

I declare that the foregoing is true dnd

correct.

Executed on December 18, meee at Los

eric chi California.

R

ed : :

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