# Petition for A Writ of Certiorari — Lee Marshall Harris and Morris Ray Caldwell v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for A Writ of Certiorari
- **Published:** January 1, 1970
- **Citation:** 400 U.S. 1211

## Text

2. This case involves an important question of
be, settled by this Court ................

3. Review should be available at this time. even
the judgment below is not final in

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Alexander v. United States, 362 F.24379 ......
Carroll v. United States, 267 U.S. 12
Carroll v. United States, 334 Us. 38s

260

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> TABLE OF AUTHORITIES CITED

Lae |
Castilto-Garcia v. United States, 424 F. 24 482
Corvantes v. Unite States, 263 F. 2 %

Gonzatee-Alonso v. United States, 379 F.24 347 ..
Henderson v. United States, 390 F.24 80S 0
Kate v. United States, 309 Us. 4,7 —
Kent v. Dulles, 357 U.S. 116 6 nse
King v. United States, 348 F.24 814 rr
Land v. Dollar, 330U.S.731 ..... 5

„mus ..............
Morales v. United States, 378 F. a 187 ........
Plazole v. United States, 291 F.2456 ....... 3.

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Co ae

: Ramires v. United States, 263 F. s 4

~*~ dies: 0

a New York, 392US.40 2.0.2... 10

rere - 9

Terry v. Ohio, 52 Us 0 K 10

— — 8 1

United States v. Gen, 400 F. .......... *

United States v. MoGlone, 38¢F.2475 ........ 7,8

United States v. Pedersen, 300 F.Supp. 669 8

Se. ‘

Valader v. United States, 6 F. 2 ........ 7

Warden v. Hayden, 387US. 294 ............ 10

"Ww. United States, uns ooo 12

Willis v. United States, 370 F.24604 .......... 7
Statutes (United Staves)

United States Constitut' n. Fourth Amend. 2, 10

D 8 7. 10

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R. Stern & k Grewmnan, Court Practice,

Sec. 4.19 (4th od. 1969) ....... 2.2.6 one, :

12

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*

The petitioners, Lee Masshall Harris and Morris Ray
Caldwell, respectfully pray that a writ of certiorari issue
to review the judgment and opinion of the United States
Court of Appeals for the Ninth Circuit entered in this

proceeding on July 27, 1970.

- a

The opinion of the Court of Appeals, not reported,
appears in the appendix hereto (Appenaix A). No
opinion was rendered by the District Court for the Central
District of California. (Appendix “A” is as originally issued.
This was later corrected to reflect appeal from the “Central
District of California.)

The judgment of the Court
U.S. 394 [1956] ), it has considered criminal cases where
the decision sought to be reviewed was not a final judg-
ment, even in cases coming from outside the federal courts.
Mills v. Alabama, 384 U.S. 214 (1965); California v. Stewart,

3864 U.S. 436, 498 n. 71 (1966).

‘Moreover, the Carroll decision involved an attempt by

=, =

the government to seek review of a district court order 8
suppressing evidence sought to be used against « defend
ant. The decision was based to a large extent on the prin-
ciple that “appeals by the government in criminal cases are
something unusual, exception and not favored” (354 U.S.
at 400 [emphasis added! ), “at least in part because they -
always threaten to offend the policy behind the double
jeopardy provision. . . ” (Will v. United States, 389 US.
90, 96 [1967] ).

These considerations behind the refusal to allow the
government to seek review in the circumstances of Carroll
thus clearly do not apply where it is the defendant who is
seeking review of the successful effort of the government
ro reverse a suppression order Indeed, one other consid-
eration militating against review by the government clearly
supports a defendant's desire to secure the decision of the
Court. As the Court said in Will, supra, I the l general
policy against piecemeal appeals takes on added weight in
criminal cases, where the defendant is entitled to a speedy

resolution of the charges against him (389 U.S. at 96).
See DiBella v. United States, 369 U.S. 121, 126 (1962).

It seems quite clear that to delay review by the Court until
after trial will not aid in the speedy resolution of the charges
against petitioners. ä

Finally, the increasing recognition given the necessity
of allowing such issues to be resolved finally prior to trial
should be noted. See, e.g, Cal.Pen.Code Sec. 1538. 5(i );
Mann v. Superior Court, ..... Cal.34 ..... (1970); A. L. I. dis-

— ete

- =

d
— * 8
CONCLUSION ; i
F

.
tiorari mould be granted. 3

4

*

APPENDIX “A”
—

UNITED STATES COURT OF APPEALS
ron THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
vs. No. 25,120

LEE MARSHALL HARRIS and
MORRIS RAY CALDWELL,

Defendants-Appellees.

[July 27, 1970)

Appeal from the United States District Court
for the Eastern District of California

Before: KOELSCH and HUFSTEDLER, Circuit Judges,
and *THOMPSON, District Judge.

PER CURIAM:

482 (9th Cir. 1970); accordingly, the order of the district
Court suppressing the use of such drugs as evidence ii

Reversed.

r Bruce R. Thompson, United States District Judge, Reno, Nevada,

=

APPENDIX “B”

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

{Caption—Case No 25,120)
[August 28, 1970)

Before: KOELSCH and HUFSTEDLER, Circuit Judges, and
THOMPSON, District Judge.

The panel, as constituted in the above case, has voted to
deny defendants-appellees’ petition for rehearing and to reject
the suggestion for a rehearing in banc.

The full court has been advised of the suggestion for an,
in banc hearing, and no judge of the court has requested a vote
on the suggestion for réliearing in banc. (Fed. R. App. p. 35(b)).

The petition for rehearing is denied and the suggestion ~
for a rehearing in banc is rejected,

Additionally, defendants-appellees’ motion for a stay of
the mandate is denied.

. =

APPENDIX “C’’
Office of the Clerk 7
U. S. Court of Appeals
| P. O. Box $47
Sen Francisco, California 9410]

[August 23, 1970

Burton Marks, Esq.
9720 Wilshire Bivd.
Beverly Hills, Calif. 90212

Dear Sir:

The Petition for a Rehearing heretofore filed in Case
No. 25120 - USA v. LEE MARSHALL HARRIS &
MORRIS RAY CALDWELL was this day denied.

Pursuant to Rule 41(a) and unless stayed by the order
of the Court, a certified copy of the judgment of this Court
under said Rule will be due to issue on the expiration of
seven (7) days from the date hereof.

Sincerely,
Wm. B. Luck,

Clerk.

be

|, the undersigned, say | am and was at all times herein mentioned, 8 citizen of
the United States and employed in the County of Orange, State of California,
over the age of cightoon years and not s party to the within action or proceeding;
thet ;

My business address is 322 Street, Huntington Beach, Californie 97648,
thet on SEPTEMBER 9) | served the within PETITION FOR WRIT OF
CERTIORARI (iasrieCaldwell v. United Stetes) on the following named parties
by depositing the designated copies ‘hereol, enclosed in 2 sealed envelope with
postage thereon fully propaid, in the United States Post Office in the City of
Huntington Beach, California, addressed to said parties at the addresses 0s
follows:

UNITED STATES ATTORNEY

ron THE CENTRAL DISTRICT OF CALIFORNIA

12TH FLOOR

U. s. COURTHOUSE - Bi,
LOS ANGELES, CALIFORNIA 90012 (3 copies)

SOLICITOR GENERAL OF THE UNITED STATES

WASHINGTON, D. c. (1 copy)
U. s. COURT OF APPEALS FOR THE NINTH CIRCUIT
SEVENTH & MISSION STREETS

SAN FRANCISCO, CALIFORNIA (1 copy)

* I declare under penalty of perjury that the foregoing is true and comect.
Executed oh SEPTEMBER), 4970, at HUNTINGTON BEACH, CALIFORNIA.

Oa

aos | 5 fey
Dean St ndefer Co. , 322 Main Street, Huntington Beach, Ca.
. i (714) $36-7161

PPP e

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