# Petition for A Writ of Certiorari — Jimenez v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for A Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 404 U.S. 1018

## Text

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

=

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 —

alle

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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

= eo

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

~~

° 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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0202%3A1. Public record. Not legal advice.