Petition for A Writ of Certiorari — Jimenez v. California

Supreme Court, U.S.

SER ARY FILED

ZW. Ss ocT 18 1st

Supreme Court of the United States' SEAVER,

October Term, 1971

71-54%

MARIANO FLORES JIMENEZ,

Petitioner,

VS.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

HOWARD GERSHAN of

LEWIS, GERSHAN, CASTILLO

& SONG

205 South Broadway

Los Angeles, California 90012

Telephone - (213) 626-7171

Attorneys for Petitione:

Dean-Standefer Co., 322 Main Street, Huntington Beach, Calif. 92648

(714) 536-7161

TOPICAL INDEX

Mariano Flores Jimenez petitions for a

hess aries ores, n,n ee

PNY Wines dow dia i deveyceclc..

Questions for Review Presented By This Petition . .

Statutes Involved (Appendix oe

Brief Statement of Facts ..... ee ae

Wk he vane vnne canes davodewcs.

I The arrest of petitioner at the door of his

home without a warrant of arrest was

without probable or reasonable cause, in

violation of the Fourth and Fifth Amend-

ments to the United States Constitution ....

II The search of petitioner’s apartment and of

his nearby garage by police officers without

a search warrant was unlawful and without

reasonable or probable cause, in violation of

petitioner’s rights under the Fourth and Four-

teenth Amendments to the United States

Et i eee

III The refusal of the trial court to require dis-

closure of the identity of the purported

confidential reliable informant denied peti-

tioner a fair trial and due process under the

Fifth Amendment to the United States Con-

ct Te Se Te aL Si

sep cascineesile eT eT TOTP ree

Ny NY WD

Mm AN

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TABLE OF AUTHORITIES CITED

Cases Page

Aguilar v. Texas, 378 U.S.108 .............. 15

Alderman v. United States,394U.S.172 ...... 12

RE eee eee 13

Chimel v. Coleen, FPS US. 752 nc ncn cseses 16

Cunha v. Superior Court, 2 Cal.3d 353. ........ 10,11

Eleazer v. Superior Court, 1 Cal.3d 847 ........ 19

Honore v. Superior Court, 70 Cal.2d 162 ...... 19

James v. Louisiana, 382 U.S. 36 .............. 17

Johnson v. United States, 333 U.S.10 ........ 15

Jones v. United States, 363 U.S. 257 .......... 12, 3

Katz v. United States, 389 U.S.347 .......... 15

Ker v. California, 374 U.S. 23 .............45. 17

Mancusi v. DeForte, 392 U.S. 364 ............ 15

McCray v. Illinois, 386 U.S.300 .............. 19

People v. Gallegos, 62 Cai.2d 176 ............ 13

People v. Garcia, 67 Cal.24d 830 .............. 19

People v. Govia, 235 Cal.App.2d 285 .......... 10, 1:

People v. Marshall, 69 Cal.2d 51 ...........4-. 10, 11

People v. McGrew, 1 Cal.3d 404 ..... te eeeeeee 10, 11

TABLE OF AUTHORITIES CITED

Cases (cont'd) Page

People v. Reeves, 61 Cal.2d 268 .............. 13

Remers v. Superior Court, 2 Cal.3d 659 ........ 10, 11

Roviaro v. United States, 353 U.S.53 .......... 18,19

Schmerber v. California, 384 U.S.757 ........ 15

Shipley v. California, 395 U.S. 818 ..... ...... 16

Spinelli v. United States, 393 U.S.410 ........ 13

Stoner v. California, 376 U.S.483 ............ 15, 16

Terry v. Ohio, 392U.S.1 .... 2.00... 11

Vaile v. Louisiana, 399 U.S.30............. 15, 16, 17

Von Cleef v. New Jersey, 395 U.S. 814 ........ 16, 17

Whitely v. Warden of Wyoming Penitentiary,

ois US. ....., 28 L.Ed.2d 306 ............ 14

Wong Sun v. United States,371US.471 ...... 12, 13

Statutes (United States)

United States Constitution

Amendment IV....... 3, 4, 5, 8, 9, 16, 11, 14, 17

AmendmentV.................. 4, 5,9, 17

Amendment XIV ................. 5, 9, 14, 17

hE | 2

iv

TABLE OF AUTHORITIES CITED

Statutes (California) Page

Evidence Code

a abs eek ee ea 64 0S 5,8

ES oe oe a Le a rey be ek eon 5,8

Health and Safety Code

Leak Sek ath ca ak oe y

EE 4. cae eae h whee kanes Ne 3,3

Penal Code

rr a a ay ea aid a be a ae 3,5

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1971

Pk cchacacin

MARIANO FLORES JIMENEZ,

Petitioner,

VS.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Honorable Chief Justice Warren Berger, and to the

Honorable Associate Justices of the Supreme Court

of the United States:

COMES NOW Mariano Flores Jimenez and respectfully

petitions this Honorable Court for a writ of certiorari direct-

ed to the Supreme Court of the State of California and to the

Court of Appeal of the State of Califo; nia, Second Appellate

District, Division Two, to revie-v and reverse the judgment of

convicion of petitioner rendered in the Superior Court of

Los Angeles County on June 19, 1969, and the judgments

=

affirming the conviction by said reviewing courts, and in

respect thereto petitioner sets forth as follows:

OPINION BELOW

The. opinion of the California Court of Appeal was ren-

dered on May 20, 1971, and certified for nonpublication, so

it will not be printed, out a copy of the opinion is attached

hereto as Appendix “A.” A Petition for Hearing in the Calif-

ornia Supreme Court was timely filed, but said court denied

the petition on July 21, 1971, and a copy of the order of

Genial is attached hereto as Appendix “B.” By reason of the

above, the remedy of petitioner in California courts has been

exhausted and the judgment of conviction is now final and non-

reviewable therein.

JURISDiCTION

This Court has jurisdiction to review this case and to

entertain the petition for certiorari under Section 1257(3)

of Title 28, U.S.C.

STATEMENT OF THE CASE

Federal Questions Raised in California Courts.

Petitioner was convicted on June 19, 1969, of two counts

of violation of the California Health and Safety Code as follows:

(a) Count V, sale of marijuana on August 5, 1968, in

violation of Section 11531.

(b) Count VI, possession for sale on August 5, 1968, of

~~

restricted dangerous drugs in violation of Section 11911.

The conviction was by the Superior Court of Los

Angeles County, Honorable Kathleen Parker, J udge,

sitting without a jury, a jury having been waived.

At the preliminary examination on November 25,

1968, in the Municipal Court of San Antonio Judicial

District in Los Angeles County, a request was made by

petitioner for the disclosure of the identity of the alleged

confidential reliable informunt, but the police refused so

to do and this refusal was upheld by the magistrate (C.T.

10-12)!. Objection was also made by defense counsel to

the introduction of the evidence obtained by the arrest

and searches without warrants, for lack of probable cause

and in violation of the Fourth Amendment. The objection

was overruled (C.T. 58-60).

On April 22, 1969, petitioner made a motion in the

Los Angeles Superior Court to suppress all the evidence

admitted at the preliminary examination, under the pro-

visions of Section 1538.5 California Penal Code, on the

ground of illegal search and seizure, and also moved for a

discovery order requiring the police to disclose the identity

of the alleged confidential informant. Said motions weve

denied (M.T. 21, 59, 67). “

At the trial on June 13, 19, it was stipulated: that

the cause might be submitted on the Reporter's Transcript

of the preliminary examination and of the hearing on the

motions to suppress and for discovery for the disclosure

alin

of the identity of the informant; that all exhibits at the

preliminary examination were deemed offered and receiv-

ed; that the objections by either side be deemed to have

been made and to be continuous objections; and that all

motions, including motions of defendant to suppress and

for disclosure, be deemed to be renewed at the trial.

At the trial the petitioner was found guilty of the

aforesaid offenses and was sentenced to state prison.

The federal questions raised at the trial were the

illegality of the arrest of petitioner, the illegality of the

search of his home, and the illegality of the search of his

garage at a distance from the place of his arrest, all done

without a warrant of arrest or search warrant, in violation

of his rights under the Fourth Amendment to the United

States Constitution. The federal question was also raised

as to the refusal of the police to disclose the identity of the

alleged confidential reliable informant, which refusal was

upheld by the trial court, thereby denying petitioner a fair

trial and due process under the Fifth Amendment to the

United States Constitution.

The same contentions were raised on appeal by peti-

tioner, but the California Court of Appeal rejected such

contentions in its opinion affirming the judgment of con-

viction (Appendix “A”) and the California Supreme Court

denied the Petition for Hearing based upon the same

grounds and issues (Appendix “B’’).

Petitioner submits that the foregoing federai questions

were raised at every step of the proceedings in his case.

heed ete: een

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QUESTIONS FOR REVIEW

PRESENTED BY THIS PETITION

(1) Was the arrest of petitioner, without a warrant of

arrest and without probable cause, unlawful and in violation

of petitioner’s rights under the Fourth and Fifth Amendments

to the United States Constitution?

(2) Was the search of petitioner’s apartment and the

nearby garage, by police officers, without probable cause

and without a search warrant, unlawful and in violation of

petitioner's constitutional rights under the Fourth and Fifth

Amendments to the United States?

(3) Did the refusal of the police and prosecution to

disclose the identity of the purported confidential informant,

and the denial by the trial court of petitioner’s motion for

disclosure, deny petitioner a fair trial and due process under

the Fifth Amendment to the United States Constitution?

STATUTES INVOLVED

Petitioner was convicted in a non-jury trial for sale of

marijuana in violation of Section 11531 of the California

Health and Safety Code and far possession for sale of a

restricted dangerous drug in violation of Section 11911 of

Health and Safety Code. The pertinent portions of these

statutes have been set forth in Appendix “‘C” to this petition.

Also set forth in Appendix “C” hereto are: California Penal

Code Section 1538.5; California Evidence Code Sections

1041 and 1042; and pertinent parts of the Fourth, Fifth

and Fourteenth Amendments to the United States Constitu-

tion.

BRIEF STATEMENT & FsCTE

Police officert recemet mi ormaton ot August 5. 1968.

from a purported rekable =formanc. fae tacit were

being sold by a Mevice: tamet Toor) souseal) mo rio pack-

ages carried mi large ew cae ees es ems apartment

at 2117 East 21st Serset, Lice Anges Cattforme and thete

fernale (Esther Deigacc,) wie eet wet tum candies the

harcotk tramactiots Gaommg Se tavtoe 3 (Te officer: placec

the apartment under sarvediance ic we Leigad: rive to an

apartment im Huntegton Park. mock it w+ pepe bag and

return to 211° East 21st Sereee Late = tre ehiernvon she

drove to 2 factory m Sos ae we Be Dioet up the

Mexxan. “Tooty later Gente mi oe eriencan Arthur

Bates and returme< the 20” wieirem Aon enght in the

everang Bates left 211° amd went ams mt epetment at 2) 09

East lst Street. several Sori ewe ot Steet returned

Thereafter. <<-defenéant Bsitort tewme te

Volkswagen tus ac ooteret care it are veacr sulicase

A little later petitumer oft 2G erterei 2” ant exited

therefrom carrying e+ oem Se ees “ee TNE Dags

used in markets anc reerteret 2 GOT tt tum of the bags

were folded ower ateust three mci oo tte surveiliong officer.

Walker could not wee wee wee tem

Later. petitioner came it woh oe pepe bags went

down a dak Grvewsy oo wert Se wm ee eT" houses

out of aught of the Sficert md woirtet wrtuon' the bags

Wolford later eft 2106 got me Ste * vieswager drove up

the darkened Gemewsy amet (eo tap fur sumewnere

out of the mght of the Ticert wie pars tien a he

Volkswagen pat anc aro zee

oat ae LER LO LEE LALO EE LO A IO Ae IE A a —

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Other officers, Surke and Rosario, after receiving

advice from Officer Walker by radio, stopped Wolford’s

bus some distance away. Officer Rosario flashed his light

into the bus. Despite the surveilling officer’s testimony that

the tops of the bags were folded over so that he could not

see the contents, Rosario testified that the bags were open

and he could see wrapped packages that looked like kilo

packages. Wolford was thereupon arrested by Officer Burke

without a warrant, the bus was searched, and the two Paper

bags containing paper-wrapped bricks, kilos of Marijuana,

were seized.

The two paper bags were introduced in evidence. The

record reflects that the witness removed from one bag

what appeared to be a brick-like substance wrapped in

brown wrapping paper, completely sealed so one could not

tell what was contained therein; it was not cellophane.

Officer Burke testified that Prior to opening the bags

nothing had occurred specifically to warrant Wolford’s

arrest. The two paper bags were on the floor behind the

driver’s seat and could only be observed by the officer

looking into the window of the car. The contents could

only be determined by removing the bags from the car,

taking out a wrapped brick, and breaking the wrapped

brick open.

Immediately after Wolford was arrested by Officer

Burke, he stated that he had bought the marijuana in the

bags from a guy named Mariano; that he gave Mariano

$520.00; that Mariano left the house and returned in a few

minutes; that Mariano directed him down a darkened drive-

way and said, “There is your bag”; and that he put the bags

in his bus and departed.

- =

Officer Burke then radioed to Walker what had occur-

red. "urke and other officers went to 2109, knocked, and

when petitioner opened the door, Burke arrested him and

t. : officers conducted a search of the apartment, finding

no contraband. During the search they found a key ina

kitchen drawer and used it to unlock the door of an attach-

ed nearby garage. In the garage they found a suitcase; they

opened it and found three paper bags containing a quantity

of dangerous drugs. The officers then went to 2117 and

arrested co-defendants Bates and Esther Delgado and search-

ed the apartment, finding drugs and marijuana packaged in

kilo form. (Petitioner was not charged with possession of

said contraband.)

The arrests of Wolford, petitioner Jimenez and the

other defendants were all made without warrants of arrest.

The searches of Wolford’s bus, of Jimenez’s apartment at

2109 East 81st Street, of the attached garage, and of 2117

East 81st Street were all made without search warrants.

The objection of petitioner to the introduction of the

evidence obtained by such searches was overruled by the

trial court. The trial court’s ruling in this respect was in

violation of the Fourth Amendment to the United States

Constitution.

The alleged reliable informant gave the officers inform-

ation concerning narcotic activities of Bates end Esther

Delgado at 2117 East 8ist Street. The informant never

mentioned 2109, nor petitioner Jimenez, nor Wolford, and

the officers had no knowledge thereof. Petitioner’s counsel

requested the disclosure of the identity of the alleged inform-

ant, but the officers refused to disclose the same, under the

provisions of Sections 1041 and 1042 of California Evidence

Sr I LE EI LE ET ND pee = eee

Code. As pointed out above, the motions by petitioner’s

counsel—made at various stages of the proceeding, including

the trial—for such disclosure were denied. The denial by

the trial court of said motions for disclosure deprived peti-

tioner of a fair trial and due process under the Fifth and

Fourteenth Amendments to the United States Constitution.

ARGUMENT

q

The Arrest Of Petitioner At The Door Of His

Home Without A Warrant Of Arrest Was Without

Probable Or Reasonable Cause, In Violation Of

The Fourth And Fifth Amendments To The

United States Constitution.

The police received information from the purported

reliable informant with respect to dealing in contraband

only as to one “Tooty,” identified later as Bates, and only

as to the apartment located at 2117 East 81st Street, an

apartment some distance from the apartment house in

which the apartment of petitioner was located at 2109 East

81st Street. The police had no information concerning

petitioner or his apartment. As indicated above, they saw

him go to‘No. 2117, come out with two Opaque paper bags

of the type usually used by grocery customers, take the bags

down a dark driveway, out of sight, and return without them.

The police were not able to see what was in the bags. Later,

Wolford drove his Volkswagen bus up the driveway, went

out of the sight of the officers, returned with two similar

paper bags, loaded them in his bus and drove away. His

ai

bus was stopped and searched at a distance from the East

8 ist Street location, and the bags and packages therein

were opened and marijuana was found. Wolford was

arrested and immediately told the arresting officers that

he had purchased the marijuana from a “guy named

Mariano” who told him to pick up the bags in a darkened

driveway, and Wolford did so. The record showed that the

marijuana was packaged in brick form in opaque brown

wrapping paper, so the nature of the contents was indis-

cernible.

The officers who arrested Wolford then radioed to

Sergeant Walker what they had found, and Walker and

Lt. Brown went to the door of 2109, where petitioner

lived, and knocked. When petitioner opened the door,

they arrested him at the door and proceeded to search his

apartment. No attempt was made by the officers to obtain

either a warrant of arrest or a search warrant.

_ Petitioner asserts that his arrest was unlawful and

without probable cause, in violation of his constitutional

rights under the Fourth Amendment. In support of this

contention in his brief on appeal to the California Court of

Appeal, petitioner cited a number of California cases,

among which were: People v. Govia, 235 Cal.App. 285;

People v. Marshall, 69 Cal.2d 51; People v. McGrew, 1 Cal.3d

404; Remers v. Superior Court, 2 Cal.3d 659; Cunha v.

Superior Court, 2 Cal.3d 353.

In Govia, as in the instant case, the officers saw some-

thing handed to one of the occupants of a car, which was

stopped and the occupants arrested, but the officers did not

know what it was nor did they have any previous knowledge

of the occupants. The court held the arrest was unlawful,

Ee Ga PSO RL EP LOL LOLOL SOLED LEELA LITE LA APN IIE INGORE PIN PPO ARE AOE ge ay goo

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being without probable cause.

In Marshall, the court held that an opaque paper

bag, even though a smell of marijuana emanated there-

from, was not within the plain sight exception, because

the contents could not be determined except by opening

the bag. A search warrant was necessary for that purpose,

and, so, the evidence was held inadmissible under the

Fourth Amendment. _

In McGrew, the search without a warrant of a foot-

locker at an airport, where the defendant had checked his

baggage, was held invalid under the Fourth Amendment.

The bricks of marijuana were packaged in Opaque paper,

and there was no probable cause to believe the packages

contained marijuana.

In Remers, the court held that the Passing of tin-

foil wrapped items did not establish probable cause for the

search and arrest of Remers, even though the arresting

officer knew Remers had numerous previous narcotic

arrests.

In Cunha, officers saw petitioner and another man,

in an area where numerous narcotic arrests had occurred,

exchange some unknown objects. They arrested and

searched petitioner, finding heroin. The court held that

the arrest, being without a warrant, was without probable

cause, in violation of the Fourth Amendment (citing

Terry v. Ohio, 392 U.S. 1).

The officers in this case arrested Wolford without

probable cause, since they had no information concerning

him or his bus, and they were unable to see what was in

the paper bags he carried in his bus. Although the officer

relaying the information to the officers who arrested Wolford

atin.

testified that the tops of the bags were folded over so he

could not see the contents, one arresting officer testified

that he could see into the bags and see paper wrapped

packages.

The trial court ordered that the record show that the

wrapping was with opaque paper. Thus, there was no

probable cause under the above-cited California cases for

the arrest of Wolford and the search of the bags in his

bus.

What the officers discovered by their illegal arrest

and search was radioed to the officers surveilling petition-

er’s apartment, and petitioner Jimenez was arrested at the

door of his apartment without a warrant. This arrest, we

submit, was based upon evidence illegally obtained by the

arrest of Wolford and the search of his car. We contend

that the subsequent arrest of petitioner was thereby tainted,

and because of the unlawful arrest of petitioner, all evidence

thereafter obtained by a search of his apartment and garage

was not incident to a lawful arrest and was tainted as being

“fruit of the poisonous tree.”

In Wong Sun v. United States, 371 U.S. 471, while the

Court held that the seizure of heroin from one Yee did not

entitle Wong Sun to object to its use against him, the state-

ment of Toy after his unlawful arrest was so tainted that

it could not be used to corroborate Wong Sun’s admissions

against himseif.

The Court, in Alderman v. United States, 394 U.S. 172,

and in Jones v. United States, 363 U.S. 257, announced the

same rule that only a person whose privacy was invaded has

standing to object to the use of evidence obtained by an

unlawful search.

«fZ..

In the instant case, as in Wong Sun, petitioner’s arrest

was due to the unlawful arrest of Wolford and the search of

his bus. Petitioner’s arrest was tainted thereby and was unlaw-

ful, so that he was a person aggrieved by the unlawful conduct

of the officers. He was a person against whom the search was

directed, because the prosecution contended that the mari-

juana found in Wolford’s bus originated from petitioner and

from petitioner’s apartment, which was subjected to search.

The matter is within the purview of the Court’s statement

in Jones, at 267, that “anyone legitimately on the premises

where a search occurs may challenge its legality. . . when

: its fruits are proposed to be used against him.”

Since the unlawful arrest and search of Wolford led

directly to the arrest of petitioner, the arrest of petitioner

was so tainted as itself to be unlawful.

The statement of Wolford that he purchased the mari-

juana from “a guy named Mariano” was insufficient to estab-

lish probable cause for the arrest of petitioner, because Wolford

was not a reliable informant—the police officers were not

acquainted with him and had never previously received inform-

ation from him. Beck v. Ohio, 379 U.S. 89; Spinelli v. United

States, 393 U.S. 410; People v. Reeves, 61 Cal.2d 268; People

v. Gallegos, 62 Cal.2d 176.

The conviction of petitioner for sale of Marijuana to

Wolford should be reversed because of insufficiency of the

evidence to establish the sale by him, for the reason that

Wolford’s statement, being hearsay, was incompetent and

inadmissible against petitioner.

It was incumbent also upon the prosecution to obtain

‘ an arrest warrant of petitioner, because no great emergency

existed. In such event a warrant was a necessity. In the

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recent case of Whitely v. Warden of Wyoming Penitentiary,

am US. ....., 28 L.Ed.2d 306, this Court stated at page 312:

“. . . [T]he stete argues that a reviewing court

should employ less stringent standards for review-

ing a police officer’s assessment of probable cause

as 4 prelude to a warrantless arrest than a court

would employ in reviewing a magistrate’s assess-

ment of probable cause as a prelude to issuing

an arrest or search warrant. That proposition

has been consistently rejected by this Court.”

The Court, in Whitely, held that the arrest warrant was

without probable cause and that the arrest of petitioner

was also without probable cause.

ll

The Search Of Petitioner's Apartment And Of

His Nearby Garage By Police Officers Without A

Search Warrant \Vas Unlawful And Without

Reasonable Or Probable Cause, In Violation Of

Petitioner's Rights Under The Fourth And Four-

teenth Amendments To The United States Consti-

tution.

After petitioner's arrest at the door of his apartment,

the officers made an immediate and detailed search of the

rooms therein and found no contraband. In a kitchen

drawer they found a key with which they unlocked peti-

tioner’s nearby garage. In a bag, similar to the bag previous-

ly seen by the officers being carried by Wolford into petition-

er’s opartment, the police, upon opening it, found pills of

dangerous drugs. Petitioner was convicted in Count VI of

“eee en >

="

the possession for sale of said drugs.

The search of the apartment and garage was unlawful

for several reasons:

First, the search was made without a search

warrant, which is a necessity in the absence of any exigency

of circumstances, which exigency did not exist here. If the

officers had probable cause to arrest petitioner and search

his apartment, they had ample time to obtain a search

warrant, but they made no attempt to do so.

In Schmerber v. California, 384 U.S. 757, at page

770, this Court stated:

“Search warrants are usually required for searches

of dwellings. . . . The requirement that a warrant

be obtained is a requirement that the inferences to

support the search ‘be drawn by a neutral and de-

tached magistrate instead of being judged by the

officer engaged in the often competitive enterprise

of ferreting out crime.’ ”

(Citing Johnson v. United States, 333 US. 10, 13-14; Aguilar

v. Texas, 378 U.S. 108, 110-111.)

The requirement of the obtaining of a search war-

rant before a search can be made, except in certain well-defined

cases, has been enunciated by a number of the decisions of this

Court, among which are: Stoner v. California, 376 U.S. 483;

Mancusi v. De Forte, 392 U.S. 364, 370; Katz v. United States,

389 U.S. 347; Vale v. Louisiana, 399 U.S. 30.

In Vale, the Court stated at page 35:

“The officers were able to procure two warrants for

Vale's arrest. They also had information that he was

residing at the address where they found him. There

is thus no reason so far as anything before us appears

a — —_

= s

to suppose it was impracticable for them to

obtain a search warrant as well (citing cases).

We decline to hold that an arrest on the street

can provide its ‘exigent circumstance’ so as to

justify a warrantless search of the arrestee’s

house.”

Second, the search of the garage was not made in

the immediate area of petitioner’s arrest and hence was unlaw-

ful. In Chimel v. California, 395 U.S. 752, officers armed

with an arrest warrant, but not a search warrant, arrested the

defendant in apparently the front room of a three-bedroom

house. They then made a search of the entire house. This

Court held that there was no justification for a search of any

room other than in the room where the arrest occurred, nor

even for a search of desk drawers or other closed or concealed

areas in that room itself without a search warrant.

In Vale v. Louisiana, supra, the defendant was

arrested at his front steps. Without a search warrant the

officers searched the whole house. This Court, in holding

the search unlawful, stated at page 33:

“A search may be incident to an arrest ‘only if it

is substantially contemporaneous with the arrest

and is confined to the immediate vicinity of the

arrest.” (Emphasis added.)

(Citing Shipley v. California, 395 U.S. 818, 819; Stoner v.

California, supra, at 486.)

In Shipley v. California, the arrest took place 15

or 20 feet from the house, and the search of the house was

held unlawful. In Von Cleef v. New Jersey, 395 U.S. 814,

the petitioner was arrested on the third floor of a 16-room

==

house. The search of the entire house was held unlawful.

In the instant case, the search of petitioner’s

home uncovered no narcotics. The officer then went to

the garage, a distance from the place of petitioner’s arrest,

and searched it. They eventually had to open a suitcase

therein and search it to find drugs, the possession of which

petitioner was convicted. Obviously, said search went far

beyond the “immediate vicinity” of the arrest: and under

the cases cited above, the search was unlawful and in viola-

tion of petitioner’s rights under the Fourth and Fourteenth

Amendments. The California courts committed constitutional

error in admitting into evidence the fruits of the illegal search.

Vale v. Louisiana, supra; Ker v. California, 374 U.S. 23;

James v. Louisiana, 382 U.S. 36.

Third, the search without a search warrant cannot

be justified by any “exigency of circumstances.” In Vale,

the Court, at page 35, delineated circumstances wherein the

lack of a search warrant could be excused—none of which

existed in this case.

ol

The Refusal Of The Trial Court To Require Dis-

closure Of The Identity Of The Purported Confi-

dential Reliable Informant Denied Petitioner A

Fair Trial And Due Process Under The Fifth Amend-

ment To The United States Constitution.

The informer used by the police gave no information

concerning any narcotic activities of petitioner nor of any

narcotic activities occurring in petitioner’s apartment. In

hen — 0

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° 4

wew of petra i ee te i et eet 9 maryuane

ty Woiors. thee teeters of me stern” mugrr nave been

of pet moras re 1s tem: «=f must be noted

that the ffir ae et es weet ee weer Wolford

and peuterer There 4 me aoe ww suspicion that

te two oe reese oY eee” lare up :

the Care Srvewsy ot me we tage Birt vr vugn’ back ;

with mom after goe’g ot Se tert ewe) were thee same

Tre ep ww fe me ey oo we ett cout have Deen

ertmely &iferent Tous ere we vy ¢ suspiciur that é

MAES TE ee: Bt ord anc petitioner.

x2 ths wat ose cer ses it “tg 9" guilt vevond

2 tyr 2st

Weoifors 1 tet re et purchased

te macijesta2 Oo a ee eee et iLumpetent

te prove ay fate ee tse petruener

In ogee of Se awwe Te tec: y' te iGerntty of

the milormant pee wes tat et wiiness at

the tai Secamre era ee Se totam 9" thet ragnt to

have taceeoct eel t cae re wc far tna and

Sut Ts

in Rowmarc >» Lasces Soscez 222 SE SE thes Court

atet tice :

“Brect =e acer et formes s iGentty

Fae ea ts ote = reievant

peor te oe at alcus oT

tet az 3 er tera 2 ct caus the

nee ms oe er ot Tue stualiens the

ae eT ae a Seecrsure ant orf the Gov-

Sime ws ee ornate. «Gusmmuss the

aes

= =

In the instant case the Court of Appeal ignored

decisions of the California Supreme Court following the

Rovario rule requiring the disclosure of the identity of

the informant when the informant may be a material

witness on the issue of guilt, namely: Eleazer v Superior

Court, | Cal.3d 847; Honore v. Superior Court, 70 Cal.2d

162; People v. Garcia, 67 Cal.2d 830.

We are not unmindful of the decision of this Court

in McCray v. Illinois, 386 U.S. 300. in that case, prior to

trial, a motion was made for the disclosure of the identity

of the informant and to suppress the evidence. At the

hearing the court denied the motion, and the defendant

was later convicted on the evidence sought to be suppress-

ed. This Court held that the informer’s identity need not

always be disclosed. The Court pointed out that the officers

were under searching cross-examination and the judge exer-

cised the discretion vested in him under Illinois law. The

Court distinguished Ro: ario by stating that the denial there

took place at the trial and not at a preliminary hearing or

prior proceeding as in McCray. Even so, this Court divided

five to four on the issue.

In the instant case, although the request for disclosure

took place at both the preliminary hearing and at the hear-

ing on the motion to suppress and for discovery, by stipuia-

tion all motions were deemed to be renewed at the trial and

all rulings of the courts at the other proceedings were deem-

ed objected to. Thus, the issue on the disclosure of the

identity of the informant was raised at the trial, as in Rovario.

This case is further distinguishable from McCray in that

the officers did not testify as to any statements made to

them by the informant pertaining to petitioner. It is then

x_ =

conceivable that the testimony of the informant could have

tended to exonerate petitioner. The denial of the right to

disclosure was therefore prejudicial and denied petitioner

a fair trial and due process.

CONCLUSION

Wherefore, petitioner Mariano Flores Jimenez prays

that this Court grant certiorari and reverse the judgments

of the California courts.

Respectfully submitted,

HOWARD GERSHAN of

LEWIS, GERSHAN, CASTILLO

& SONG

Attorneys for Petitioner

PORTMAN L NT NTA LMR ET NONE DAP MEE

APPENDIX

Page {

Opinion of the Court of Appeal of the i

State of California, Second Appel- L

late District, Division Two .............. l

“RB”

Denial of Petition for Hearing, California ;

ee ee aen 6 :

—

Statutory Provisions Involved

California Health and Safety Code i

ne ee Ne es i i aa 7 (

EE ee ae ea aa eo as ek eg ees 7

California Penal Code

NE Toran eile anlage lon ts 7 ;

California Evidence Code :

EE sa hie aa nl oda dee ae kaw oealew ne am 9

AE Saye See RU Nig COG Rk A PRS eae 10

United States Constitution

er re ee ee Le 11

ee ee 11

Se@eacdeeoneeeen 6686 6 6 6 8 82 @ @ 6 ©

APPENDIX “4”

OPINION OF THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

L—

In the Court of Appeal of the State of California,

Second Appellate District, Division Two.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent, v. MARIANO FLORES JIMENEZ,

Defendant and Appellant.

2D CRIM. NO. 17583.

S. CT. NO. A 406 621.

(FILED - May 20, 1971]

APPEAL from a judsment of the Superior Court of

Los Angeles County. Kathleen Parker, Judge. Reversed in

Part; affirmed in part.

Messrs. Lewis, Gershan & Castillo by Russell E. Parsons,

for Appellant.

Thomas C, Lynch, Attorney General, William E. James,

Assistant Attorney General, Leonard R. Milstein, Deputy

Attorney General, for Respondent.

TRE COURT:

Defendant appeals from the judgment entered following

a nonjury trial that resulted in his conviction for POssession of

marijuana for sale in violation of Health and Safety Code sec-

tion 11530.5. sale of marijuana in violation of Health and

Safety Code section ! 1531, and possession for sale of a re-

stricted dangerous drug in violation of Health and Safety Code

section 11911. He contends: “I There was insufficient

Probable cause for the arrest of Jiminez and hence his arrest

a

‘a

2.

was illegal. II The evidence was insufficient to establish a

sale of marijuana as charged in Count V. Ill The People

failed to prove that Jiminez had dominion, control and

knowledge of the presence and narcotic character of the

marijuana found in Wolford’s bus nor that he had dominion,

control and knowledge of dangerous drugs in the pills found

in the suitcase in the garage. IV The refusal of the officers

to disclose the identity of their informant requires a reversal

of the judgment of conviction and a dismissal of this case.”

We have concluded that these contentions are without merit.

The evidence is not in dispute. Having received informa

ton from a reliable informant that narcot cs were being sold

in large quantities, usually in kilo packages carried in large

brown paper bags, from an apartment at 2117 Bast 8ist

Street, Los Angeles Police Officer Walter Burke and several

other officers began a survi illance of the apartment on Aug-

ust 5, 1968. Several transactions took place that afternoon,

one of which involved two large brown paper bags.

At approximately 8 p.m. one of the occupants of 2117

entered an apartment several doors away at 2109 East 81st

Street and then returned to 2117. Thereafter, codefendant

Wolford drove up in a red and white Volkswagen bus and

entered 2109 carrying a large black suitcase. A short time

later, appellant came out of 2109 and went into 2117 where

he obtained two large brown paper bags which he placed in

the driveway of 2109 before he re-entered this apartment.

Wolford then exited 2109, drove his Volkswagen bus to the

driveway of 2105, placed the bags in the bus, re-entered 2109

for a few minutes and drove off.

Two officers approached the Volkswagen bus at a stop

sign and asked for Wolford's driver's license. One of the

4.

the vehicle, lights from street lamps, neon signs or lamps, or

the flash of lights from adjacent vehicles (citation); that the

light comes from a flashlight in an officer’s hand makes no

difference. (Citations.)” (People v. Superior Court, 3 Cal.

App.3d 636, 639.)

As a result of their observations and the recovery of

the marijuana, the officers had sufficient probable cause to

arrest appellant without relying on any statements made by

Wolford after his arrest. Appellant's argument concerning

the reliability of Wolford when considered as an informant

is, therefore, inclevant.

Since the search of the garage occurred prior tu the

decision in Chime! v. California, 395 U.S. 752, and that

decision is not retroactive (People ». Edwards, 71 Cal.2d

1096), the search was reasonably incident to appellant's

arrest because the garage was a part of the place where he

was arrested and under his dominion and control. (People

». Dixon, 46 Cal.24 456.)

Appellant's contention that the evidence was insuffi-

cient to establish that he had sold, or aided and abetted in

a sale of marijuana to Wolford, is no more than a suggestion

that we should reweigh the evidence. This, of course, we

cannot do. (People ». Kemp, 55 Cal.2d 458, 471.)

Similarly , where, as here, there is substantial direct and

circumstantial evidence supporting the trier of fact’s deter-

mination that an accused exercised aominion and control

over contraband, with knowledge of its presence and its

narcoluc character, such determination is binding on appe}

late review. (People ». Groom, 60 Cal. 2d 694, 696-697.)

Appellant's final contention, that the officers improp-

erly refused to disclose the identity of the reliable inform-

m4

Sa th GLA SAMA NAS NR

that appellant's conviction for possession of marijuana for sale

is, in the instant context, a necessarily lesser included offense

within the more serious crime of selling marijuana for which

he was also convicted. (Cf. People v. Francis, 71 Cal. 2d 66,

71 et seq.) That is to say, since no marijuana was discovered

in appellant's apartment, 2109, and it was not contended that

ant, is without merit. Evidence Code sections 1041 and

1042, subdivision (c), provide that the identity of an inform-

€r need not be disclosed unless the necessity for disclosure in

the interest of justice outweighs the necessity for preserving

the confidentiality of his identity.

““[A] defendant seeking to discover the identity of an

informant bears the burden of demonstrating that, “in view of

the evidence, the informer would be a material witness on the

issue of guilt and nondisclosure of his identity would deprive

the defendant of a fair trial.” (Citations.)’” (People ». Meyers,

6 Cal-App.3d 601, 609; see also, Honore ». Superior Court

70 Cal.24 162.) In the instant proceeding appellant has failed

to make any showing that there was a reasonable possibility

that the anonymous informant could have given evidence on

the issue of his guilt which might have resulted in his exoner-

ation.

Although not assigned as error on this appeal, we note

he had any possessory rights in the contraband subsequently

recovered from apartment 2117, the only marijuana which he

co

maripoama for tae it al oer meget: tt puGgment bs

affiemet (CERTIFIED FOR WOMPJELITATION |

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net

APPENDIX “Cc” 7.

STATUTORY PROVISIONS INVOLVED

California Health and Safety Code

§ 11531.

“Every person who transports, imports into this

state, sells, furnishes, administers, or gives away, or

offers to transport, import into this State, sell, furriish

administer, or give away, or attempts to import into

this state or transport any marijuana shall be punished

by imprisonment in the state prison hee”

811911.

“Except as otherwise provided in Article 8 (com-

mencing with Section 4210) * * © of Chapter9* *

° of Division 2 of the Business and Professions Code,

every person who possesses for sale any restricted danger-

ous drug shall be punished by imprisonment in the state

California Penal Code

§ 1538.5. Motion to return property or suppress

evidence.

“(a) Grounds

“(a) A defendant may move for the return of

Property or to suppress as evidence any tangible or

intangible thing obtained as a result of a search or

seizureon * * * either of the following grounds:

“(1) The search or seizure without a warrant was

unreasonable * * *

“* (f) Felony motion at preliminary hearing

“* (f) If the property or evidence relates to a feiony

offense initiated by a complaint, the motion may be

made in the municipal or justice court at the preliminary

hearing.

“* (i) Felony; renewal of motion at special hearing;

review

“ (i) If the property or evidence obtained relates

to a felony offense initiated by complaint and the defend-

ant was held to answer at the preliminary hearing, or if

the property or evidence relates to a felony offense

initiated by indictment, the defendant shall have the

right to renew or make the motion in the superior court

at a special hearing relating to the validity of the search

or seizure which shall be heard prior to trial and at least

10 days after notice to the people unless the people are

willing to waive a portion of this time. The defendant

shall have the right to litigate the validity of a search or

seizure de novo on the basis of the evidence presented at

a special hearing. After the special hearing is held in the

superior court, any review thereafter desired by the de-

fendant prior to trial shall be by means of an extraordi-

nary writ of mandate or prohibition filed within 30 days

after the denial of his motion at the special hearing.

“ (m) Exclusive pre-trial remedy; review on appeal

after conviction

“(m) The proceedings provided for in this section,

Section 995, Section 1238, and Section 1466 shall

I OT ee me ta) ey Rey ~ apne ony FOE ON Oe i TE AS et, fk ita a

oa 4 ’ " yeos

9.

constitute the sole and exclusive remedies prio: to con-

viction to test the unreasonableness of a search or seiz-

ure where the person making the motion for the return

of property or the suppression of evidence is a defendant

in a criminal case and the property or thing has been

offered or will be offered as evidence against him. A

defendant may seek further review of the validity of a

search or seizure on appeal from a conviction in a crim-

inal case notwithstanding the fact that such judgment of

conviction is predicated upon a plea of guilty. Such

review On appeal may be obtained by the defendant pro-

viding that at some stage of the proceedings prior to con-

viction he has moved for the return of property or the

suppression of the evidence.”

California Evidence Code

Pe

§ 1041. Privilege for identity of informer.

“(a) Except as provided in this section, a public

entity has a privilege to refuse to disclose the identity

of a person who has furnish. d information as provided

in subdivision (b) purporting to disclose a violation of a

law of the United States or of this state or a public

entity in this state, and to prevent another from disclos-

ing such identity, if the privilege is claimed by a person

authorized by the public entity to do so and:

, ae

“(2) Disclosure of the identity of the informer is

against the public interest because there is a necessity

for preserving the confidentiality of his identity that

outweighs the necessity for disclosure in the interest of

tiie il

Ren Ree Re etme a re ec aera a —— nat

10.

justice; but no privilege may be claimed under this

paragraph if any person authorized to do so has

consented that the identity of the informer be dis-

closed in the proceeding. In determining whether

disclosure of the identity of the informer is against

the public interest, the interest of the public entity

as a party in the outcome of the proceeding may not

be considered.

“(b) This section applies only if the information

is furnished in confidence by the informer to:

“(1) A law enforcement officer;

“(2) A representative of an administrative agency

charged with the administration or enforcement of the

law alleged to be violated; or

“(3) Any person for the purpose of transmittal to

a person listed in paragraph (1) or (2).

“(c) There is no privilege under this section to

prevent the informer from disclosing his identity.

(Stats. 1965, c. 299, 8 1041.)”

§ 1042. Adverse order or finding in certain cases

“(a) Except where disclosure is forbidden by an

act of the Congress of the United States, if a claim of

privilege under this article by the state or a public

entity in this state is sustained in a criminal proceeding,

the presiding officer shall make sacl. order or finding of

fact adverse to the public entity bringing the proceeding

as is required by law upon any issue in the proceeding

to which the privileged information is material.

“(b)...

“(c) Notwithstanding subdivision (a), in any

11.

preliminary hearing, criminal trial or other criminal

proceeding, * * * any otherwise admissible evidence

of information communicated to a peace officer by a

confidential informant, who is not a mterial witness

to the guilt or innocence of the accused of the offense

charged, * * * is admissible on the issue of reasonable

cause to make an arrest or search without requiring

that the name or identity of the informant be disclosed

if the judge or magistrate is satisfied, based upon evi-

dence produced in open court, out of the presence of

the jury, that such information was received from a

reliable informant and in his discretion does not require

such disclosure.”

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, supported by oath or affirm-

ation, and particularly describing the place to be searched,

and the person or things to be seized.”

Amendment V

“No person shall be . . . deprived of life,liberty or

Property without due process of law; .. . ”

Amendment XIV

ot 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 protection

of the laws.”

STATE OF CALIFORNIA )

) ss.

Ccunty of Orange )

I, the undersigned, say: {am and was at all times herein mentioned, a citizen

of the United States and employed in the County of Orange, over the age of

eighteen years and not a party to the within action or proceeding; that

My business address is 3 Street, Huntington Beach, California 92648,

Clerk, Superior Court of Los Angeles County

111 North Hill Street

Los Angeles, California 90012

For: Honorable Kathleen Parker, Judge [1 copy]

Attorney General, State of California

600 State Building

Los Angeles, California 90012 St eo Oe

District Attorney, County of Los Angeles

600 Hall of Justice

Los Angeles, California 90012 {1 copy]

I declare under penalty of perjury that the foregoing is true and correct.

Executed on OCTOBZR Ie 1971, at

Dean-Standefer Co., 322 Main St., Huntington Beach, Ca.

(714) 536-7161