Petition for a Writ of Certiorari — Burch v. New Jersey

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IN THE

Supreme Court of the United Staten

Ocroser TERM, 1971

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“~ 71-4908

WILFORD HARRISON BURCH, SR.,

STATE OF NEW JERSEY,

Petitioner,

Respondent.

On Petition For A Wait oF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEW JERSEY

PETITION FOR A WRIT OF CERTIORARI

WALSH & SIEGEL,

Counsel for Petitioner,

568 Cedar Lane,

Teaneck, New Jersey 07666

Newark, N. J. N. J. Appellate Printing Co., Inc.

(201) 623-7224 Law Printers

Woodbridge, N. J.

(201) 636-2030

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1971

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TABLE OF CONTENTS

Petition for a Writ of Certiorari to the Supreme

Court of the State of New Jersey .............

I kar ecakevaen oe ebhedawaceecec<

has xe oa. de ons waa sens hawse cues

PY II in sc cv cenecwcvecvchuvess

Constitutional and Statutory Provisions Involved ....

Stetement of the Case .....................2

RA

B. Facts Pertaining to the Searches ........... ie

C. The Court’s Charge to the Jury .............

D. Statement of Federal Questions ............

Reasons for Granting the Writ ...................

ere eres

SS rr re ae ee

Cases CITED:

Chambers v. Maroney,

399 U.S. 42 S. Ct. 1970 ——— L. Ed. 24 ——

RBIS a aie Agee ere

Dyke v. Taylor Implement Mfg. Co.,

391 U.S. 216, 88 S. Ct. 1472, 20 L. Ed. 2d 538

Se oot id Cesena was ane sek eeea en beks

Fontaine v. California,

390 U.S. 593,, 88 S. Ct. 1229, 20 L. Ed. 2d 154....

Page

10

14

1]

11

13

TABLE OF CONTENTS

Page

Cases CITED:

Griffin v. California, |

380 U.S. 609, 15 L. Ed. 2d 106, 85 S. Ct. 1229 .... 13

Higgins v. United States,

93 U.S. App. D.C. 340, 209 F.2d 819 (D.C. Cir.

TS PORTER ERAN GS 12

judd v. United States,

89 U.S. App. D.C. 64 F.2d 649 (D.C. Cir. 1951) .. 12

Morrison v. California,

291 U.S. 82, 78 L. Ed. 664, 54 S. Ct. 281 ........ 13

Sibron v. New York,

392 U.S. 40 S. Ct 1889 ——— L Ed. 2d ——— (1968) 10

State v. Boykins,

50 N.J. 73 (1967) 0.0... cece eee eee. Ul

State v. Braston,

93 N.J.L.J. 885 (1970) ..........2 0000 cee eee ll

State v. Campbell,

53 N.J. 230 (1969) ........ 2.00.0 cee eee ee eee. 1

State v. Cusick,

110 NJ. Super. 149 (App. Div. 1970) .......... ll

State v. Hock,

54 NJ. 526 (1969) 0.2.0... 200. e eee e eee. 1

State v. DiRienzo,

Re ee CT COE 6c becker esceesceusacioness 9, 12

ti

TABLE OF CONTENTS

Page

STATUTES CITED:

| ee ee 3, 5, 8

WR I sk ores Bice hn 'pnrnsusensdiactna 5

I I cys ce wanes kon en Sadseouscencn 10

CONSTITUTIONS CITED:

ge Re 2

APPENDIX

Appendix “A”

Order Denying Petition for Certification ........ la

Appendix “B” |

Opinion of the Supreme Court of New Jersey .... 2a

IN THE

Supreme Court of the United States

OcroBER TERM, 1971

No.

WILFORD HARRISON BURCH, SR.,

Petitioner,

vs.

STATE OF NEW JERSEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPEME COURT OF

THE STATE OF NEW JERSEY

Petitioner, Wilford Harrison Burch, Sr., prays that

a writ of certiorari issue to review the judgment of the

Supreme Court of New Jersey, entered July 7, 1971, deny-

ing his petition for certification, and that on hearing the

judgment of conviction be reversed.

2

OPINIONS BELOW

The decision of the Supreme Court of New Jersey is

not yet reported, the same being an order denying peti-

tioner's petition for certification.

An opinion of the Superior Court of New Jersey, Ap-

pellate Division, affirming the defendant's conviction is not

yet reported.

JURISDICTION

The Order of the Supreme Court of New Jersey deny-

ing certification was entered on July 7, 1971. This Court

has jurisdiction under 28 U.S.C.A. § 1257(3).

QUESTIONS PRESENTED

1. Whether the search of petitioner's automobile by a

police officer who observed no motor vehicle violation or

other crime, as well as subsequent searches of petitioner's

home which were based upon information received in the

original search, constituted violations of his rights under

the Fourth and Fourteenth Amendments to the Constitu-

tion of the United States.

2. Whether error was committed by the trial court in

charging the jury by reading the entire “receiving stolen

property statute” and thus placing the burden of proof

upon the petitioner to explain his possession of stolen

articles, and whether such error was in violation of the

Fourteenth Amendment.

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

FOURTH AMENDMENT

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 uopn probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

FOURTEENTH AMENDMENT

Section 1. 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 due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws. . . .

N.J.S. 2A:139-1. Buying or receiving stolen property;

harboring thief; possession as sufficient evidence to convict,

except in certain cases.

Any person who receives or buys any goods or chat-

tels, or chooses in action, or other thing of value stolen

from any other person or taken from him by robbery or

. otherwise unlawfully or fraudulently obtained, or con-

verted contrary to law, whether the stealing or

was committed either in or out of this State, and whether

the property was received or bought from the thief or

robber, or from another person, or who receives, harbors

4 Constitutional and Statutory Provisions Involved

or conceals any thief or robber knowing him to be so, is

guilty of a high misdemeanor.

Possession of such property within 1 year from the

date of such stealing, robbery or unlawful or fraudulent

obtaining, shall be deemed sufficient evidence to authorize

conviction, unless the accused show to the satisfaction of

the jury either:

a. That the property, considering the relations of the

parties thereto and the circumstances thereof, was a gift to

him and not received by him from a minor under the age

of 16 years; or

b. That the amount paid by him for the

represented its fair and reasonable value and that it was

not received by him from a minor under the age of 16

years; or

c. That when he bought the property he knew or

made inquiries sufficient to satisfy a reasonable man, that

the seller was in a regular and established business for

simultaneously with or before the receipt or sale, reported

the transaction to the police authorities of the municipality

in which he resided at the time of such receiving or buying

and that the property was not received by him from a

minor under the age of 16 years; or

e. That before he received or bought the property

from a minor under the age of 16 years, he first com-

Statement of the Case 5

N.J.S. 24:18-4. Unlawful manufacture, possession,

sale, etc.

It shall be unlawful for any person to manufacture,

possess, have under his control, sell, prescribe, administer,

dispense or compound any narcotic drug, except as au-

thorized by this chapter.

STATEMENT OF THE CASE

A. Procedure

Petitioner was indicted by the Bergen County Grand

Jury for one count of possession of a narcotic drug in viola-

tion of N.J.S. 24:18-4 and four counts of possession of

stolen property in violation of N.J.S. 2A:139-1. Petitioner

was tried for all of these counts on April 9, 1970 in the

Bergen County Court with a jury. One count of possession

of stolen property was dismissed and he was convicted of

all remaining counts. Defendant was sentenced to <2rve

8 to 10 years in the New Jersey State Prison for the viola-

tion of N.J.S. 24:18-4. He was further given three to five

years concurrent sentences on each count in violation of

N.J.S. 2A:139-1.

Prior to trial, the defendant had moved, pursuant to

the New Jersey Court Rule, to suppress the evidence

against him on the grounds of an illegal search and seizure.

This motion was denied by the trial court. Defendant

then moved for leave to appeal this decision to the Appel-

late Division, which motion was denied since the applica-

tion was moot. (Defendant had aiready been tried and

convicted and had a remedy for denial of his motion by

direct appeal as of right.)

6 Statement of the Case

On appeal, the Appellate Division affirmed the convic-

tion of defendant and a Petition for Certification to the

Supreme Court of New Jersey was denied. Copies of the

opinion of the Appellate Division and Order of the Su-

preme Court are annexed hereio. .

B. Facts Pertaining to the Searches

At approximately 11:30 A.M., on October 29, 1969,

Trooper Robert Beh of the New Jersey State Police was

on routine patrol duty in Teaneck on Rte. #95 (also known

as Rte. #80 in that area). At this time, he observed a

1970 Cadillac operated by the defendant proceeding

southbound in the local lanes of the highway. The Trooper

observed a pink sticker on the right hand portion of the

-windshield which indicated that there was a fourteen-day

period in which the vehicle was supposed to have been

inspected. Trooper Beh motioned the defendant to pull

over to the shoulder of the road and pulled his police car

behind the Cadillac. He had not observed any violations

of the traffic laws on the part of the defendant and his only

reason for stopping him was to inspect the sticker and

check his license and registration. Trooper Beh did not

remember whether or not he was operating an unmarked

car. Upon stopping the defendant's vehicle, he walked

around the car and looked at the pink sticker. He did not

recall whether or not the sticker showed that the vehicle

was overdue for inspection. Nor did he recall whether

he issued a traffic summons for the failure to have the

vehicle inspected.

Trooper Beh asked to see the defendant's license and

registration, but did not recall whether or not the defend-

ant produced his license. Indeed, before the Grand Jury,

Trooper Beh stated that the defendant, upon being asked

Statement of the Case 7

for his license and registration, produced his license but

failed to have his registration with him. At trial, he stated

that the defendant did not have his license.

Trooper Beh testified that in response to a question

concerning the license and registration, defendant stated

that “he did not have his driver’s license in his possession

at that particular time, but the registration might be in

the trunk of the vehicle.” Thereupon, according to T

Beh, the defendant got out of the vehicle, walked to the

rear, and opened his trunk. As soon as the defendant -

opened the trunk, the officer observed “four cellophane

bags containing a white powdery substance”. Trooper Beh

could not recall what other specific items were in the

trunk. Upon observing the cellophane bags, he asked the

defendant what was in them. The defendant replied it

was for his kid. The defendant was then placed under

arrest for possession of narcotics.

Trooper Be!. <lid not recall if the trunk was opened

with an autom.:ic device from the glove compartment,

but stated that ‘he defendant voluntarily opened the trunk

of the automobile to look for his registration, at which

point he observed narcotics in plain view.

Upon the opening of the trunk of the 1970 Cadillac,

Trooper Beh observed 4 large cellophane bags containing

a white powdery substance. The bags had a combined

weight of 520 grams of heroin and 920 grams of cocaine.

The state proved that the car was owned by the defend-

ant’s wife and that it was the defendant who suggested

they look in the trunk.

After arrest of the defendant, a second Cadillac pulled

up at the scene and the driver identified himself to Trooper

Beh as being the son of the defendant. Trooper Beh also

placed the son under arrest.

8 Statement of the Case

The subsequent search of Petitioner's home was based

upon a warrant. The affidavit for the warrant gave as sub-

stantive grounds for the search only that Petitioner had

just been arrested with large quantities of heroin and

cocaine in his automobile and that the officer, a narcotics

* expert, felt that such a quantity meant Petitioner was a

wholesaler of narcotics and maintained a place to process

the drugs.

No narcotics or narcotics related paraphernalia were

found on the premises.

While executing the search warrant, the police ob-

served some 500 watches contained in a cardboard car-

ton which they seized. Actually, the precise number was

521 watch movements. At the time of that seizure, the

police noted several business machines and wrote down

the serial numbers and any other identifying features.

After learning the probability that the items were stolen,

a second search warrant was issued for the seize of these

items. The seizure of these items and the watches resulted

in separate counts charging the defendant with possession

of stolen property.

C. The Court's Charge to the Jury

At the outset of his charge, the trial judge advised the

jury that the law with respect to the receiving of stolen

property was “as follows”. He then proceeded to read

the entire receiving statute, N.J.S. 2A:139-1, to the jury.

This statute permits an inference of knowledge of posses-

sion, an element of the offense, by virtue of an unxplained

ion within one year after the theft. The defendant

thus had the burden of establishing his innocence of the

charge by explaining his possession. This result was rein-

forced by the trial court when it subsequently charged

The Courts Charge 9

that the inference of guilt allowed by statute was sufficient

to justify a conviction unless the “defendant overcomes the

inference of guilt thus raised by showing to the satisfaction

of the jury any reasonable explanation xxx.”

D. Statement of Federal Questions

The issue of an illegal search and seizure was raised

prior to trial by a motion to suppress. This motion was

denied, as was the motion for interlocutory leave to appeal.

The latter motion was denied on the ground that since

the trial had been completed, the issue was moot and

defendant had an automatic right to review of all issues

on appeal.

The issue with regard to the charge of the trial court

was raised by exception in that defense counsel argued

that the statutory “presumption” of guilty knowledge did

not apply to at least one of the articles allegedly possessed

more than a year after the same was stolen. The Appellate

Division stated that this objection was ill-founded and that

defendant had not raised the issue at the trial level. The

court did however consider the issue. The Appellate Di-

vision agreed that the charge was contrary to the directions

of the applicable New Jersey case (State v. Di Rienzo, 53

N.J. 360 (1969) ). Further it was held that the trial court’s

language which implied that it was incumbent upon the

defendant to establish to the satisfaction of the jury, any

“reasonable explanation” of his possession to overcome the

“inference of guilt” arising from recent possession was

erroneous. (See Opinion of Appellate Division annexed

hereto. )

Nevertheless, the Appellate Division again found no

“plain error” as against what it termed the “fanciful ex-

planation” for the defendant's possession by him, as testi-

10 Reasons for Granting the Writ

fied to by his wife. The court stated that the jury's deci-

sion was based not upon the court's charge, but upon the

incredibility of the tendered explanation.

The Appellate Division also found without merit all

of defendant's other contentions, including his argument

pertaining to the legality of the searches and seizures.

(See Opinion of Appellate Division annexed hereto. )

Petition for Certification to the Supreme Court of New

Jersey was denied on June 7, 1971. The Order of denial

is annexed hereto.

REASONS FOR GRANTING THE WRIT

Under the facts heretofore set forth, it is respectfully

submitted that the search in question violated Petitioner's

rights under the Fourth Amendment. The State of New

Jersey argues in large part that the search is justified by

virtue of the New Jersey statute authorizing Police officers

to inquire of motorists for their license and registration and,

absent proper registration, or proof of ownership, to arrest

the defendant. N.J.S. 39:5-25. This is construed to allow

a search of the vehicle for proof of ownership.

Assuming the foregoing to be a correct interpretation

of the law, the Supreme Court case of Sibron v. New York,

392 U.S. 40, 38 S. Ct. 1889 L.Ed.2d (1968) has

nevertheless stated that while-a state may make its own

search and seizure law to meet the needs of local law

enforcement and may call the standards it employs by any

name it chooses, it may not authorize police conduct

which trenches upon Fourth Amendment rights, regardless

of such labels. The search may therefore be unreasonable

under the Fourth Amendment although authorized by

state law.

Se SS BAS 60 Oe Stee aD en «

Reasons for Granting the Writ 11

It is respectfully submitted that the facts of Sibron v.

New York, supra, (the search of an individual for narcotics

after seeing him converse at length with known narcotics

users ) are analogous to those of the case at hand to such

an extent as to place the conviction of Petitioner in direct

conflict with that case, thus requiring certification to this

court for correction.

Further, the case of Chambers v. Maroney, 399 U.S.

42, 90 S.Ct. 1970 L.Ed.2d (1970) dealt spe-

cifically with the search of a motor vehicle. It was stated

therein that automobiles may be searched without a war-

rant under circumstances which would not justify the

search of a house. It was nevertheless held that probable

cause is the minimum requirement for a reasonable search

under the Constitution. See also Dyke v. Taylor Imple-

ment Mfg. Co., 391 U.S. 216, 88 S. Ct. 1472, 20 L. Ed. 2d

538 (1968) expressly finding no probable cause to search

an automobile.

It is respectfully submitted that there is no probable

cause to believe any crime or offense had been committed

in the case at hand. The officer could not even recall if the

vehicle was overdue for inspection. The applicable New

Jersey cases, while seeming to indicate that a search may

be undertaken merely to obtain proof of ownership, never-

theless deal with factual situations involving evidence at

least of motor vehicle violations and often, more serious

offenses. See e.g. State v. Hock, 54 N.J. 526 (1969); State

v. Campbell, 53 N.J. 230 (1969); State v. Boykins, 50 N.J.

73 (1967); State v. Cusick, 110 N.J. Super. 149 (App. Div.

1970); State v. Braston, 93 N.J.L.J. 885 (1970).

The primary issue thus appears to be whether or not

the police officers may search a vehicle merely in search

of proof of ownership where there is no probable cause to

12 The Court's Charge

believe an offense or crime has been committed. It is

respectfully submitted that the United States Supreme

Court cases heretofore cited indicate that such a search is

unreasonable.

While the State of New Jersey also argues that the

search was consented to, and Fourth Amendment rights

therefore waived, it is suggested that this approach is not

merited by the facts since nowhere does it appear that the

Petitioner invited a search or consented to a search, merely

that he was searching for the registration himself. To be

voluntafy, the consent must unequivocal and specific and

freely and intelligently given. Judd v. United States, 89

U.S. App. D.C. 64, 190 F.2d 649 (D.C. Cir. 1951). A

strong factor indicating lack of such consent is the fact

that the search resulted in seizure of contraband which the

accused must have known would be discovered. See Hig-

gins v. Unit-d States, 93 U.S. App. D. C. 340, 209 F.2d

819 (D. C. Cir. 1954).

For the foregoing reasons, it is respectfully submitted

that the search in question resulted in a denial of Peti-

tioners Fourth Amendment rights and review of the de-

cision below therefore is sought for proper relief.

THE COURT’S CHARGE

Petitioner is not here attacking the constitutionality

of any New Jersey statute. Rather he is claiming denial

of due process in the application of the statute to him.

The New Jersey Supreme Court has laid down guidelines

for the offense of receiving stolen property and expressed

the dangers of reading the statute because of its language

concerning the permissible inferences from possession.

State v. Di Rienzo, 53 N.J. 382 (1969). The Appellate Di-

nee IEE

The Court's Charge 13

vision found that the trial court’s charge in the case at hand

was contrary to the directions in Di Rienzo. It neverthe-

less found no “plain error”.

Emphasis is here made by the Petitioner on the state-

ments of the trial court in his charge which exaggerated the

effect of the statute and, in effect, required the defendant

alone to testify to prove his innocence. Specifically, the

trial court stated it was incumbent upon the defendant to

establish to the satisfaction of the jury any “reasonable

explanation” of his possession to “overcome the inference of

guilt arising from recent possession. The Appellate Di-

vision again agreed that this was error, but not reversible

in view of the “fanciful explanation” offered by the de-

fendant for his possession.

It is respectfully submitted that the obvious effect of

the language of the court was to place the burden upon

defendant to prove his innocence, a situation not contem-

plated even under the statute. The Appellate Division, in

effect, was speculating on the jury's reasoning in order to

find the error not reversible.

It is further submitted that this placing of the burden

of proving innocence on the defendant is a violation of due

process. See Morrison v. California, 291 U.S. 82, 78 L.Ed.

664, 54 S. Ct. 281 in which case the presumption arose by

stattue.

Further, the effect of the language noted was to ad-

vise the jurv that it was incumbent upon the defendant to

testify. The jury could thus easily determine that failure

’ _ of the defendant to testify was evidence of his guilt. See

Fontaine v. California, 390 U.S. 593, 88 S. Ct. 1229, 20

L.Ed.2d 154; Griffin v. California, 380 U.S. 609, 15 L.Ed.

2d 106, 85 S. Ct. 1229.

It is thus respectfully submitted that the charge

to the jury prejudiced Petitioner's right to a fair trial

and denied him due process, requiring review by this

court.

14

CONCLUSION

Respectfully submitted,

/s/ John K. Walsh

JOHN K. WALSH

WALSH & SIEGEL

Attorneys for Petitioner

la

APPENDIX “A”

IN THE

SUPREME COURT OF NEW JERSEY

C-527 Sepremser Term, 1970

STATE OF NEW JERSEY,

Plaintiff-Respondent,

WILFORD HARRISON BURCH, SR.,

Defendant-Petitioner.

Order Denying Petition for Certification

(Filed July 7, 1971)

To Appellate Division, Superior Court:

A petition for certification having been submitted to this

Court, and the Court having considered the same,

Bt & Ressupen Caceres Ghat Che getiiien Ser entiation

is denied, with costs.

WITNESS the Honorable Joseph Weintraub, Chief Jus-

tice, at Trenton on the 7th day of July, 197i.

/s/ Irving B. Zeichner

Acting Clerk of the Supreme Court

2a

APPENDIX “B”

Opinion of the Supreme Court of New Jersey

(Filed May 12, 1971)

Argued April 26, 1971—Decided

Before Judges Conford, Kolovsky and Carton

On appeal from Bergen County Court

Mr. John K. Walsh argued the cause for appellant (Mr.

Carlos Peay, Jr., attorney)

Mr. Anthony J. Pace, Assistant Prosecutor, argued the

cause for respondent (Mr. Robert Dilts, Bergen County

Prosecutor, attorney )

The opinion of the court was delivered by

CONFORD, P.J.A.D.

We have examined and find without merit defendant’s

contentions: that the evidence adduced at trial was the

product of unlawful search and seizure; that the verdict

of ‘plain error.” State ov. Baker, 49 N.J. 103, 105 (1967),

cert. den. 389 U.S. 868 (1967). We fail to perceive such

a showing here.

Opinion of the Supreme Court 3a

of New Jersey

There was no objection by defendant at trial to the

Court’s instruction to the jury on the charges of receiving

stolen property except to argue that the so-called pa

“presumption” of guilty knowledge (mentioned by tue

court—but not as a “presumption”) did not apply in refer-

ence to one of the items—a typewriter—that having been

stolen more than a year prior to defendant's

The defendant's objection was ill-founded. Proof offered

on defendant's behalf showed possession by him of that

article less than a year after the theft. Defendant argues

for the first time on appeal that the charge was contrary to

expressions of the Supreme Court in State v. DiRienzo, 53

N.J. 360 (1969), particularly in respect of the danger that

reading and commenting on the receiving statute in the

charge to the jury may have the effect of reversing the

State's burden of proof of all the elements of the crime

and of imposing a burden of justification of innocent pos-

session on the defendant once the State shows possession

by defendant within a year of the theft.

We agree that the charge on receiving was contrary to

the directions of DiRienzo, particularly the caveat therein

against reading to the jury that portion of the statute deal-

ing with permissible inferences from the fact of possession

within a year of the theft. 53 N.J., at 382. Moreover, the

incorporation in the charge of language implying that it

was incumbent upon the defendant to establish to the satis-

faction of the jury any “reasonable explanation” of his

possession to “overcome the inference of guilt” arising

from recent possession, was erroneous. However, the

court did at one disconnected point of the charge instruct

the jury that it was incumbent upon them in order to con-

vict to find defendant guilty beyond a reasonable doubt

of all the elements of the crime, including the element of

knowledge that the goods were stolen.

da Opinion of the Supreme Court

of New Jersey

Notwithstanding the shortcomings of the charge afore-

said we do not conclude that they amounted to plain error

as against the fanciful explanation for defendant's posses-

sion of the stolen typewriter, calculator and dictaphone

submitted on his behalf by his wife. This was that these

obviously costly articles, which were not ordinary house-

hold equipment, were abandoned by a tenant in a room-

ing house operated by defendant and his wife in New

York after running up arrears on his rent bill, and that they

removed the articles to their home in New Jersey merely

to clear the room for rerental, never hearing from the

tenant again. We are satisfied that the jury's findings of

the defendant's guilt on the receiving charges were not

influenced by the nature of the court's charge on burden

of proof but rather upon the incredibility of the tendered

explanation for his possession of the articles.

Affirmed.

A TRUE COPY

/s/ Mortimer G. Newman, Jr.

Clerk