Petition for Writ of Certiorari — Hattersley v. Texas

PS AAEMETE ETS ROR LEED

pera’. Fos

AP

Vv.

Petition for Writ of Certiorari to

The Court of Criminal Appeals of Texas

* * *

SAM HOUSTON CLINTON, JR.

_ 600 West 7th Street

SUBJECT INDEX

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CONSTITUTIONAL PROVISIONS ...........

6 A»

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CI leas cabo eees

a ne

Cee ere PPE OEOIED... ww. 2... eee

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED. ..........

Dimer? Gr PRC CASE..............

Challenge to Article 725b Vernon's

Annotated PenalCode.................

Challenge to Seizure and Search .........

ee

REASCNS FOR GRANTING THEWRIT.......

1. Indiscriminately Including Marijuana

With Dangerous Narcotic Drugs and

Providing Identical Penalties for

Their Possession Is an Unreasonable

and Discriminatory Legislative

Scheme That Poses Serious and

Timely Constitutional Questions That

cae wes

ll. This Case Raises a Significant

Constitutional Question Concerning

Application of Fourth Amendment

Requirements to a Warrantless

Search Based Upon a First Time

ee MID A Ree wae aT

GME 5. save nasonsacncvse os

eee 19

SIGNATURE OF COUNSEL ........ - errr errs:

CERTIFICATE OF SERVICE .......--- sere eee reree:

PPENDIX A — OPINION AND JUDGMENT OF

THE COURT OF CRIMINAL APPEALS OF

TABLE OF CASES

Page

Abie State Bank v. Weaver

282 U.S. 765, 51S. Ct.252(1931)................ 14

Aguilar v. Texas,

378 U.S. 108, 84S. Ct. 1509(1964)...... sw! 19

Baker v. State,

_ 58 S.W.2d 534 (Cr. App., 1933)................... 9

Beck v. Ohio,

379 U.S. 89, 85S. Ct. 223 (1964)............0. 19

Broom v. State,

463 S.W.2d 220 (Cr. ee 6

Capuchino v. State,

389 S.W.2d 296 (Cr. CM, ee 13

_ Coyne v. State,

485 S.W.2d 917 (Cr. A, 16

Curry v. State,

459 S.W.2d 644 (Cr. CR eS ee 13

Edwards v. So. Carolina,

372 U.S. 229, 83 S. Ct. 680(1963)................ 19

)

English v. Miller,

|: 341 F. Supp. 714 (E.D. Va.,1972)........ 14

| Fawcett v. State,

| 127 S.W.2d 905 (Cr. App., 1939)............ 12

Fletcher v. State,

282 S.W.2d 230 (Cr. App., 1955)............. Se

Gonzales v. State,

293 S.W.2d 786 (Cr. SRS Ae eet a 13

(i)

¥ faa ary Rin eiateresmeatt ‘i

= eR ARE LIOR gd SARE SIMILAR IIE LON ES OBLAST RN SAN

TERPS MRA MLA ITE SORT gt TA COS ee Oey Ug ae ~~

LET PREYS

Gonzales v. State,

Se Wy ee UC, PD., TEGO... ac eee nee 13

Hernandez v. State,

ee ee et GT. PADD, VT 6 vc cece esse 13

Leary v. United States,

395 U.S. 6, 89 S. Ct. 1532 (1969)............. re

Lindsey v. Natural Carbonic Gas Co.,

220 U.S. 61, 31S. Ct. 337 (1911)..... Sy gerne: 16

Locke v. State,

329 S.W.2d 873 (Cr. App., 1959)...... .......... 13

Massiate v. State,

365 S.W.2d 802 (Cr. App., 1963)...... 13

McLaughiin v. Florida,

379 U.S. 184, 85S. Ct. 283 (1964)... .. eo:

Miller v. State,

458 S.W.2d 680 (Cr. App., 1970) Jen tam eats 6

People v. McCabe,

49 |II.2d 338, 275 N.E.2d 407 (1971).. .... _.6, 15, 18

People v. Sinclair,

387 Mich. 91, 194 N.W.2d 878 (1972). ........ 15, 18

Ramirez v. State,

125 S.W.2d 597 (Cr. App., 1938)................. 12

Reyna v. State, ;

434 S.W.2d 362 (Cr. App., 1968)............... 6, 13

Sam v. State,

500 P.2d 291 (Okla. Cr. App., 1972) . ........ . 16

Sanders v. State,

482 S.W.2d 648 (Cr. App., 1972)............... 6, 16

Shapiro v. Thompscn,

394 U.S. 618, 89 S. Ct. 1322 (1969)............... 16

(ii)

——"~_

—

Skinner v. Oklahoma,

316 U.S. 535, 62S. Ct. 1110 (1942)...0.. 17, 18

Spangler v. State,

117 S.W.2d 63 (Cr. Pe I 8 Oo kc cate ss 10

Spinelli v. U.S.,

393 U.S. 410, 89 S. Ct. 564(1969).........0000 | 19

State v. Kantner,

493 P.2d 306 ( PO MOE ois ycsvnvnceacis,. 16

State v. Zornes,

469 P.2d 552 (Wash., 1970)..........00000 2 14, 18

U.S. v. Harris,

403 U.S. 573, 91S. Ct. 2075 (1971)............... 20

Valdez v. S tate,

117 S.W.2d 459 (Cr. i. 12

Whiteley v. Warden,

401 U.S. 560, 91S. Ct. Wee PS i 19

CONSTITUTIONAL PROVISIONS

Page

United States Constitution:

Fourth Amendment .......................... 2

Eighth Amendment............................ 3

Fourteenth Amendment ........................ 3

STATUTES INVOLVED

Article 725b Vernon’s Annotated Penal Code........__. 3

Article 726d, Sec. 15(a) Vernon's Annotated

Koon sy stiyrs cn gE ee ee 17

Acts 1906,p.46 0... eee. 9

(iii)

* Popa hae Lie ek CRE eS AT ae Sut ce oe a APE TOM ERE Rh

a are Na ES Sea a i ae ak a a .

Acts 1931. 42d Leg., p. 154, SE peer noe at We oe y

Acts 1933, 43d Leg., p. 609, ch. heat eats ee

Articles 720-725 Vernon's Texas Penal

Statutes, 19386 edition ....------ sss 10

Article 725a Vernon’s Texas Penal

Statutes, 1936 edition .....------ srr 10

Acts 1937, 45th Leg., p. 333, ch. 169 .....-- eee: 11

OTHER AUTHORITIES

Handbook of the National Conference of Commis-

sioners on Uniform State Laws and Proceedings

1925 Handbook 975-976, pa cimanee eons 11

1928 Handbook 322, 323, 325 ....------.s0 11

1929 Handbook 333 .....-----:ss 11

1039 Handbook 485, 487, ee koe 11

1930 Handbook 126-127 ....-.---:sssssrt 11

1931 Handbook 390, 392, oo 11

1932 Handbook 95-107 .....-----ssrsrr 11

1932 Handbook 325-326 .....------ ss 11

1937 Journal of Texas House of Representatives

House Journal p. 32B...-----seesr a

House Journal p. 1543.....----ssssrcr 12

“Marijuana in Texas,’”’ A Report to the Senate

Interim Drug Study Committee, March

1972, pp. 42, 35-38, 50 ...------e errr 17

“Narcotics Legislation,” Hearings, Subcommittee

to Investigate Juvenile Delinquency of the

Committee on the Judiciary, United States

Senate, U.S. Government Printing Office,

Washington: 1969, pp. ee ae 12

9B Uniform Laws Annotated 418 .....------ecctt? 11

(iv)

SMR NERS REALE ESL EES st

——

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

NO.

CLEVE M. HATTERSLEY,

Petitioner

THE STATE OF TEXAS,

Respondent

Petition for Writ of Certiorari to

The Court of Criminal Appeals of Texas

| Petitioner, CLEVE M. HATTERSLEY, prays that a writ of

certiorari issue to review the judgment of the Court of

Criminal Appeals of Texas entered in this cause September

25, 1972, rehearing denied November 15, 1972.

OPINION BELOW

The opinion and judgment of the Court of Criminal

Appeals of Texas is reported at 487 S.W. 2d 354 (Cr App..

1972). a copy of that opinion is attached hereto as

, . — Ee OSES POE ELPA IG EO MORE

SPAR ALESIS LIER OEM TE TG Ee ES TR SL ISR BS

Anpenair “4. Timely filed motuon for rehearing was

overruled without written opinion.

‘

:

JURISDICTION .

Judament of conviction was affirmed by the Court of

Criminal Appeals of Texas September 25, 1972, and

motion for rehearing was overruled by the Court

November 15, 1972. The jurisdiction of this Court ts

invoked under 28 U.S.C. §1257(3).

QUESTIONS PRESENTED

|. In classifying maryuana as a ‘narcotic drug” y

indiscriminately with coca leaves, opium and other “hard”

narcotic drugs named in Section 1 (14) and providing

identicai penalties in Section 23, does Article 725b,

Vernon’s Annotated Penal Code of Texas, violate Equal

Protection and Due Process clauses of the Fourteenth i

Amendment?

2. In the absence of a showing by the State that there is,

a factual nexus betwe«:. proscribing possession of

marijuana ana promotng public health, safety and welfare,

can Article 725b, Vernon's Annotated Penal Code of Texas

be sustained as a valid exercise of nolice power?

3. Under the circumstances of the instant case, were

the seizure and search of a suitcase in question prior to

arrest of petitioner violative of his rights under the Fourth

Amendment to the United States Constitution?

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United States

Constitution provides:

ia nll

“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 shali issue, but upon )

«ti

LEAP IEE ELSIE TT IS aa

—

probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched,

and the persons or things to be seized.”

The Eighth Amendment to the United States

Constitution provides:

“Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.’’

The Fourteenth Amendment to the United States

Constitution provides in part:

“Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shali make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person or life, liberty, or

property, without due process of law: nor deny to any

person within its jurisdiction the equal protection of

the laws.”

STATE STATUTE INVOLVED

Article 725b, Vernon’s Annotated Penal Code of Texas,

provides in pertinent part:

“Section 1. The following words and phrases, as

used in this Act, shall have the following meanings,

unless the context otherwise requires:

* * *

(11) ‘Coca Leaves’ includes cocaine and any

compound, manufacture, salt, derivative, mixture,

Or preparation of coca leaves except derivatives of

coca leaves which do not contain cocaine,

ecgonine, or substances from which cocaine or

ecgonine may be synthesized or made.

en

(12) ‘Opium’ includes morphine, codein, heroin,

and any compound, manufacture, salt, derivative,

mixture, or preparation of opium, which does not

include apomorphine or any Of its salts.

(13) The term ‘Cannabis’ as used in this Act shall

include all parts of the plant Cannabis Sativa =

whether growing or not, the seeds thereof, the

resin extracted from any part of such plant and

every compound, manufacture, salt, derivative,

mixture, or preparation of such plant, its seeds, or

resin; but shall not include the non-resinous oil

obtained from such seed, nor the mature stalks of

such plant, nor any product or manufacture of such

stalks, except the resin extracted therefrom and

any compound, manufacture, salt, derivative,

mixture, or preparation of such resin. The term

‘Cannabis’ shall include those varieties of Cannabis

known as Marijuana, Hashish and Hasheesh.

(14) “Narcotic drugs’ means coca leaves,

opium, cannabis, amidone, isompecaine and every

substance neither chemically nor physically

distinguishable from them; also opiates, which shall

mean any drug having an addiction-forming or

addiction-sustaining liability similar to opium or

cocaine; substances which are now listed in, or

may be added subsequently to, Schedule II, Title Il,

Part B, Section 202, under the provisions of the

Comprehensive Drug Abuse and Prevention and

Control Act of 1970.

* * *

“Sec. 2. (a) It shall be unlawful for any person to

manufacture, possess, have, control, sell, prescribe,

administer, dispense, compound, offer to sell, or offer

to buy any narcotic drug. Proof of an offer to sell

must be corroborated by a person other than the

ne se

OSLER: CLO S

—

offeree or by evidence other than a statement of the

offeree.

08 Whe

* * *

; Sec. 23. (a) Except as provided in Subsections (b)

and (c) of this section, any person who violates any

} provision of this Act is guilty of a felony and upon a

| conviction is punishable by imprisonment in the

; penitentiary for not less than two years nor more than

life; and upon a second or subsequent conviction, he

is punishable by imprisonment in the penitentiary for

not less than 10 years nor more than life. Suspended

sentence or probation under the Adult Probation and

. Parole Law is not available to a person upon a

| second or subsequent conviction.

* * *.

STATEMENT OF THE CASE

Challenge to Article 725b, V.A.P.C.

The indictment on which petitioner was tried and

convicted alleged that on or about August 31, 1970 he “did

then and there unlawfully Possess a Narcotic drug, to-wit:

Marijuana.”' Before trial and by motion to quash

indictment, petitioner challenged the constitutional validity

of Article 725b, V.A.P.C., supra, upon which the

indictment was based. /nter alia, he asserted that

“inclusion of marijuana as a variety of cannabis and of

cannabis as a ‘narcotic drug’ indiscriminately with coca

leaves, Opium, and other ‘hard’ drugs named in Section

1(14) with identical penalties provided in Section 23 is

arbitrary, unreasonable and irrational and a denial of due

process and equal protection of law. . .” and that “the Act

as it relates to private possession of marijuana is beyond

the police power of the State of Texas in the absence of a

of em Bt Oe, a oll

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‘an emphasis is supplied throughout by the writer of this petition

unless otherwise indicated.

i is

—- EEN OPENER AE PPE ae eae ASSEN ee

PPA NE PNGEG TOOS A POLE LILLIES GEG SE ee

cai atts aii

me

showing by the State that there is a factual nexus between

proscribing such private conduct and promoting public

health, safety and welfare.’’ The trial court overruled the

motion, presumably because similar contentions have

been made and uniformly rejected by the Court of Criminal

Appeals of Texas. After his conviction and subsequent to

filing his appellate brief, the decision of the Supreme Court

of Illinois in People v. McCabe, 49 III.2d 338, 275 N.E. 2d

407 (ill. 1971) became known and was considered by the

Court of Criminal Appeals in Sanders v. State, 482 S.W.2d

648, 651-652 (Cr. App., 1972), but the Court was “not

persuaded,” preferring the dissenting opinion of Chief

Justice Underwood in McCabe ‘‘as being more sound than

that of the majority.” Quoting from that dissenting

opinion, the Sanders Court emphasized, “in the absence of |

more nearly conclusive evidence that the legislative

judgment was devoid of any rational basis, a finding of |

unconstitutionality is unwarranted. . ."” Believing that the

Court of Criminal Appeals was applying the wrong test

and, in any event, ignoring ‘‘nearly conclusive evidence,”

petitioner renewed his challenge to the constitutionality of |

Article 725b with respect to possession of marijuana, on |

motion for rehearing, asserting the grounds set forth in

questions 1 and 2, supra. However, adhering to its position

in Sanders, the Court of Criminal Appeals overruled |

motion for rehearing.

Challenge to Seizure and Search

Also before trial petitioner filed and presented his motion |

to suppress ‘‘all evidence obtained from his person and |

from a Braniff International airplane wherein he was |

situated,’” contending that the intrusion upon his privacy :

See, e.g., Broom v. State, 463 S.W.2d 220, 222 (Cr. App. 1971);

Miller v. State, 485 S.W.2d 681 (Cr.App. 1970); and Reyna v. State,

434 S.W.2d 362, 366 (Cr. App. 1968).

on sans

—

was “‘without lawful authority, without probable cause and

without a valid search warrant.” After a pre-trial hearing on

the motion, the trial court denied it. Then, on trial,

objection to admitting the suitcase and its contents “for all

the reasons heretofore stated in our motion to suppress”

was denied and the exhibits admitted in evidence. Brief of

Appellant in the Court of Criminal Appeals of Texas

assigned error in overruling that portion of motion to

suppress contending and in admitting the exhibits into

evidence over objections to the effect that ‘the seizure and

search of the suitcase was ‘without probable cause’ and

therefore violative of the Fourth Amendment to the United

States Constitution. . .”” These grounds of error were

overruled by the Court of Criminal Appeals; they were

renewed on motion for rehearing and again overruled.

Statement of Facts

Three lay witnesses testified at hearing on motion to

suppress. Two of those three and a police officer who had

not testified at pretrial, testified at trial. Thus, on critical

points regarding probable cause for seizure and search, the

testimony varied from one hearing to trial and, as can be

demonstrated on a fuller exposition, became inconsistent

and conflicting.

- Suffice it for present purposes to say that on pretrial

hearing it was developed that at the instance of two

customer service employees of Braniff International

Airways, the Austin Municipal Airport Manager for Braniff

observed in a partially opened suitcase among other

baggage cellophane wrappers around brown paper

wrapped packages and ‘‘decided to call the authorities.”

This was “‘the first time’’ the Braniff Manager had occasion

to call the authorities; indeed, he called the office of the

Federal Bureau of Investigation and someone there

a ILS RE ene Pt of OEE EN

a

referred him to the head of Special Services Detail of the

Austin Police Department. Responding to that telephone

call, the Austin officer contacted the Braniff Manager at

the latter’s terminal office; they went to a waiting Braniff

airplane where the suitcase, having meanwhile been taken

to the plane, was removed from the baggage compartment

and opened. The Austin officer then tore into one of the

cellophane wrapped brown paper packages, felt and

smelled the substance therein, and then boarded the

airplane with a_ Braniff employee who pointed out

petitioner as the person that had checked the suitcase.

At trial the Austin officer testified to receiving the call

from Braniff’s Terminal Manager and going to the Austin

Municipal Airport where he contacted the Manager,

testifying ‘| think | knew him, but | am not sure.’’ Over

objection the officer was then permitted to give his version

of a conversation he claimed to have had with another

Braniff employee on the way to the airplane,” and what the

officer ‘’felt’”’ as to the reliability of ‘‘the Braniff personnel”

regarding their knowing and identifying marijuana.

Without any doubt, seizure and search of the suitcase

preceded identification and arrest of Petitioner.

REASONS FOR GRANTING THE WRIT

3That Braniff employee disclaimed saying anything to the Austin

officer, surmising that his supervisor, Braniff’s Terminal Manager,

had already told the officer what the situation was, ‘‘So we

immediately took him on out to the airplane.”

4a critical portion of the testimony admitted over objection was *'!

know that they have experience with marijuana. We have had calls

from out there before and | didn’t — | don’t recall having posed the

question, because | felt certain that they were aware of what

marijuana was; and, if | posed the question as to how they knew it, |

don’t recall.”

~~

—

INDISCRIMINATELY INCLUDING MARIJUANA

WITH DANGEROUS NARCOTIC DRUGS AND

PROVIDING IDENTICAL PENALTIES FOR THEIR

POSSESSION IS AN UNREASONABLE AND

DISCRIMINATORY LEGISLATIVE SCHEME

THAT POSES SERIOUS AND _ TIMELY

CONSTITUTIONAL QUESTIONS THAT NEED

RESOLUTION.

The Unreasonable Classification

The drug laws of Texas, like Topsy, just ‘‘grow’d.”” The

first State statute revealed through research, Acts 1905, p.

45, prohibited selling or distributing cocaine, morphine,

opium and chloral hydrate and derivative preparations.

Fourteen years later the prohibition was expanded to

include “cannabis indicia, cannabis sativa or preparations

thereof or any drug or preparation from any cannabis

variety, Or any preparation known as marijuana,"’ with

exceptions for medicinal purposes;> a violation was

punishable by a fine of from $25 to $200 or jail confinement

from one month to a year, or both. Not until 1931 was a

“narcotic drug’ act passed by the Texas Legislature, Acts

1931, 42d Leg., p. 154, ch. 97, and it included Opium,

morphine, heroin, cocoa leaves, cocaine and Marijuana

and derivative preparations. Once again provisions were

made for exemptions for medicinal preparations, but

penalties were increased. The enactment came under

immediate judicial scrutiny in Baker v. State, 58 S.W.2d

534 (Cr. App., 1933) and the opinion of the court

illuminates the state of knowledge concerning marijuana

5The prohibitions were not to apply to ‘‘preparations containing

not more than one grain per ounce of solid extract of cannabis

indicia, cannabis sativa or preparations therefrom or any drug or

preparation from any cannabis variety... ."

ee

— AEE:

— LLL DR LPL IT PTT

then extant in Texas:

‘‘Marijuana(marijuana),’ pronounced ‘merry-huana,’

and called ‘griefo’ or ‘merry’ by addicts that use it, isa

product of Mexican hemp. It contains a volatile drug.

It is most often taken in the form of a smoke, and

sometimes mixed with tobacco. It produces a high

exhilaration, and when taken in excess, it motivates

brutal criminality.”

While the court was not prepared to vouch for its

statement,° it did conclude, “the classification of the

articles mentioned in the statute now under consideration

is an arbitrary one” for the drugs named ‘are not all

narcotics. . . ."". Apparently reacting to the Baker opinion,

the Texas Legislature amended its 1931 Act by reenacting

a substantially similar substitute, Acts 1933, 43d Leg,., p.

609, ch. 204, effective September 6, 1933.’ See generally

Articles 720-725 and Article 725a, Vernon's Texas Penal

Statutes, 1936 edition.

Meanwhile the National Conference of Commissioners

on Uniform State Laws struggled with its project for a

uniform act governing narcotic drugs. Its early drafts

eschewed the term ‘narcotic drugs’ in favor of

6"We have no authentic information touching the drug last

mentioned above. No reference to it either in the dictionary or the

encyclopedia has been discovered. The foregoing is from a statement

in a magazine and the accuracy of the statement is vouched for by

the members of the Court.”

7 Spangler v. State, 117 S.W.2d 63 (Cr.App., 1938) appears to be

the only appellate opinion dealing with the 1933 Act, but it does not

determine the validity of that Act.

8Reports of recommendations and proceedings are contained ina

volume published annually entitled “Handbook of the National

Conference of Commissioners on Uniform State Laws and

Proceedings,’’ hereinafter cited by year of handbook and page

number in that volume.

— oe

ssa Sata ao eae ae ged ka Ne ig ca aR

“a

“habit-forming drugs” and included one form or another

of cannabis, 1925 Handbook 975-976, 978: 1928 Handbook

322-323, 325; 1929 Handbook 333. In 1930, however, a

third tentative draft no longer included cannabis as a

“habit-forming drug” but covered it ina separate section

because, as the Committee on Uniform Narcotic Drug Acts

reported:

“Note: Because of many objections raised to the

inclusion of cannabis indicia, cannabis americana and

cannabis sativa in the general list of habit-forming

drugs, no mention is made of them in other sections

of this act. * *

1930 Handbook 485, 487, 493. Neither this nor the next

several drafts submitted were approved for reasons that

appear in the proceedings, 1930 Handbook 126-127; 1931

Handbook 390, 392, 398-399. Finally, after much debate on

matters other than cannabis, a fifth draft was approved,

1932 Handbook 95-107. The Uniform Narcotic Drug Act

thus adopted substituted “narcotic drugs” for

“habit-forming drugs;”’ cannabis was not included but a

note suggested ways to include cannabis if “‘it is desired,”’

1932 Handbook 325-326. The act, as adopted, was not

amended or revised until 1942, when the current definition

of cannabis was inserted, 9B Uniform Laws Annotated 418

“Historical Note.” Thus it was that commissioners on

uniform state laws composed of representatives from all

States, including Texas, began their work with the notion

that cannabis was a “habit-forming drug” but 10 years

later, after dropping that term in favor of “narcotic drug”

determined that cannabis did not necessarily come under

that characterization and declined to include it, expressly

leaving its inclusion optional if “it is desired.”

In 1937 the Legislature of Texas exercised its options.

Curiously enough, the bill that was to become Article 725b,

Acts 1937, 45th Leg., p. 333, ch. 169, H.B. No. 440, did not

at OF os

ae EN Ty He EE gt ae ae

a,

include either cannabis or marijuana as _ originally

introduced — only “cocoa leaves, cocaine, opium, |

morphine, codeine, heroin and any compound. . .”’ etc.,

House Journal p. 328. Inclusion of cannabis as one of the

“narcotic drugs” named in section 1, subsection (14) and

definition of cannabis as set forth in section 1, subsection

(13), supra, occurred in a so-called committee amendment

that was actually a complete substitute, the text of which

is shown in House Journal p. 1543. What moved the

committee to include cannabis cannot be ascertained from

official records of the Legislature since proceedings of

hearings were not, and are not, recorded; but a still

respectable newspaper, “The Houston Post,”’ reported in

its March 12, 1937 issue that at the committee hearing:

“James B. Biggins, Federal narcotic bureau official, r

said ‘Texas is one of the worst States in the Union in

dope selling’ and ‘Houston is one of the worst cities in

the country.’

“He charged that use of the Mexican narcotic weed,

marihuana, is increasing, ..."°

The Court of Criminal Appeals of Texas did not have

occasion to investigate inclusion of marijuana as a

“narcotic drug” in early cases arising from the 1937 Act. 10

Then, in Fawcett v. State, 127 S.W.2d 905, 906 (Cr. App.,

1939) the court rejected a motion to quash indictment in a

possession of marijuana case, stating a proposition from

which it has never retreated:

ICompare similar tactics employed on the Congress of the United

States in 1937 as recounted by Dr. Stanley F. Yolles, Director, |

National Institute of Mental Health to the Subcommittee to '

Investigate Juvenile Delinquency of the Committee on the Judiciary,

United States Senate, ‘‘Narcotics Legislation,” Hearings, U.S.

Government Printing Office, Washington: 1969, pp. 273-275.

10See, e.g., Valdez v. State, 117 S.W.2d 459 (Cr. App., 1938) and

Ramirez v. State, 125 S.W.2d 597 (Cr. App., 1938).

of 12 me

pcaneenasm rays wots th

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*.

“The term ‘cannabis’ is denominated as a narcotic

drug under Art. 725b, Vernon's Ann. P.C., and the

term ‘cannabis’ under said statute includes those

varieties of cannabis known as marijuana.

Consequently, marijuana is classed as a narcotic

drug.”

Thus the Court of Criminal Appeals of Texas has never

really examined the constitutional questions raised from

time to time, being simply content to defer to the ancient

legislative pronouncement that marijuana is a narcotic

drug.

Elsewhere, in 1970 Congress revised and modernized its

laws treating possession of marijuana as well as other

drugs. State laws came under close scrutiny from

legislative and judicial eyes, and were found wanting.

Successful attacks were made against the notion of

judicial approval of a classification of Marijuana as a

narcotic on the strength of legislative imprimatur alone. '2

See, e.g., Hernandez v. State, 129 S.W.2d 301 (Cr. App., 1939):

Fletcher v. State, 282 S.W.2d 230 (Cr. App.. 1955); Gonzales v. State,

293 S.W.2d 786 (Cr. App., 1956); Gonzales v. State, 323 S.W.2d 55

(Cr. App.. 1959); Locke v. State, 329 S.W.2d 873 (Cr. App., 1959):

Massiate v. State, 365 S.W.2d 802 (Cr. App., 1963); “Whether the

marijuana plants were narcotic drugs; the possession of which is

unlawful, does not rest upon the biologist’s or chemist’s definition or

classification, but upon the Statute under which this prosecution was

had;"’ Capuchino v. State, 389 S.W.2d 296 (Cr. App., 1965); Reyna v.

State, 434 S.W.2d 362, 366 (Cr. App., 1968); Miller v. State, 458

S.W.2d 680, 684-685 (Cr. App., 1970); Curry v. State, 459 S.W.2d 644

(Cr. App., 1970); Broom vy. State, 463 S.W.2d 220, 222 (Cr. App.,

1970).

'2 leary v. United States, 395 U.S. 6, at 38, fn. 68 (1969) may have

provided the impetus:

“A statute based upon a legislative declaration of facts is

subject to constitutional attack on the grounds that the facts no

longer exist; in ruling upon such a challenge a court must, of

course, be free to reexamine the factual declaration (citing

cases),”’

ie A as

saaane

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a

The Supreme Court of Washington in State v. Zornes, 469

P.2d 552, 560 (Wash., 1970), recently addressed itself to

this very issue. After reviewing many of the scientific

treatises on the distinctions between the effects of

marijuana and “hard drugs,” the Court said:

“The fact that the legislature did, in another act,

define it as a ‘narcotic drug’ did not change its nature

and give it properties which it does not possess. . It is

doubtful whether a legislative declaration contrary to

all the evidence can be sustained as constitutional if

its effect is to deny to a defendant equal treatment

under the law.”’

Legislation bottomed upon exercise of police power,

even if legitimate when made, is invalid where later

events and experience show that it has become

arbitrary or unreasonable. Abie State Bank v. Weaver,

282 U.S. 765, 772, 51 S.Ct. 252, 255 (1931). Clearly,

where the legislation based upon the police power is

later shown to be based upon myths and erroneous

factual considerations, it is invalid.

In a number of recent cases, the rationality of certain

drug statutes and their sanctions has been examined by

the courts in light of modern scientific, psychological

and sociological understanding. Where the factual basis

or conceptual framework has been found wanting or

nonexistent, the statute has been invalided. Thus in

English v. Miller, 341 F. Supp. 714 at 717-718 (E.D. Va.,

1972), a federal court invalidated Virginia's classification

of marijuana as a narcotic, holding: ‘The classification

of marijuana as a narcotic is, in this Court's opinion,

violative of the equal protection clause of the United

States Constitution.” Several state supreme courts

have agreed and invalidated their own marijuana laws.

In People v. McCabe, 49 \II.2d 338, 275 N.E.2d 407

~ vo

~w iin

(1971), it was argued that classifying marijuana under the

narcotic drug act rather than under the Drug Abuse

Control Act with the stimulant or depressant drugs was

constitutionally an improper Classification, considering the

present state of knowledge concerning the comparative

nature and effects of the drugs named in the two statutes.

The Court agreed with the contention that there was no

rational basis for distinguishing a first sale of marijuana

from a first sale of stimulant or depressant drugs under the

Drug Abuse Control Act and that the gross disparity

between the penalties violated his rights under the Equal

Protection Clause. 275 N.E.2d at 408-409.

The plurality decision in People v. Sinclair, 38] Nich. 91,

194 N.W.2d 878 (1972) held that the statutory classification

of marijuana along with “‘hard drugs” for purposes of

imposition of penalties denied equal protection of the laws.

The denial of equal protection of the laws is brought about

by the classification of marijuana with hard drugs for it is

arbitrary and unreasonable for there exists ample scientific

proof that the marijuana is less dangerous than

barbiturates, amphetamines and any other hallucinogens.

194 N.W.2d at 881-87. The more persuasive of the findings

are:

“Comparison of the effects of marijuana use on both

the individual and society with the effects of other

drug use demonstrates not only that there is no

rational basis for classifying marijuana with the hard

narcotics; but, also that there is not even a rational

basis for treating marijuana as a more dangerous drug

than alcohol.

” “ ”

We agree with the Illinois Supreme Court in People

v. McCabe, supra, that marijuana is improperly

Classified as a narcotic and hold that M.C.L.A.

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. an

|

§335.31: M.S.A.§18.1121, and its classification of

marijuana violates the equal protection clauses of the

United States Constitution, Amendment XIV... .”

A concurring opinion by Justice Williams found that the

Michigan statute classifying marijuana as a narcotic was

invalid under either the rational basis test of Lindsay v.

National Carbonic Co., 220 U.S. 61 (1911), or compelling

governmental interest test of Shapiro v. Thompson, 394

U.S. 618 (1969).

In Sam v. State, ___ Okla. , 500 P.2d 291, 11

Cri. Law 2530 (Okla. Cr. App., 1972) Oklahoma agreed with

the Illinois decision in MeCabe, supra, and Hawaii probably

would have done se in State v. Kantner, 493 P.2d 306

(Haw., 1972) but fo: a disabling concession by appellant |

there; see concurring opinion of Justice Abe and |

dissenting opinions of Justice Levinson and Kobayashi.

Thus recognition of reality in light of scientific and

medica! findings as to the true nature and characteristics of

marijuana has impelled the Congress, most legislators, at

least one federal court and several state supreme courts to

treat marijuana in a rational, reasonable manner that does

not impinge on constitutional guarantees. But, for its part,

Texes clings to early myths and argumentative distortions

to cemy due process and equal protection assurances,

promaiming ‘We are not persuaded,” Coyne v. State, 485

S.W.2d 917, 920 (Cr. App., 1972); Sanders v. State, 482

S.W.2d 648, 651 (Cr. App., 1972).

We submit that this case, like another presently

pending,’ raises serious constitutional questions of major

13the “classification” question in the Ohio drug statute is

presented in a petition for certiorari filed September 13, 1972, in No.

72-425: McDonald v. Ohio, and at last report we were given to

understand that Ohio has been requested to respond to the petition.

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import. '4

The Discriminatory Penalties

As shown above courts have found that accepted

scientific and medical evidence overwhelmingly

establishes that statutes similar to the Texas statute

arbitrarily classify marijuana in the same category as

dangerous narcotic drugs. The result of this arbitrary

classification is to subject Petitioner to a discriminatory

penalty in violation of the Equal Protection Clause.

First offense possession of marijuana is punishable

under the Texas statute for not iess than two years nor

more than life, Art. 725b, Sec. 23(a). In contrast, Texas has

provided penalties for possessing such dangerous drugs as

barbiturates and amphetamines at a fine of not more than

$3,000, jail confinement for not less than 30 days nor more

than two years, or both, Art. 726d, Sec. 15(a). Thus

penalties imposed upon Petitioner violate the Equal

Protection Clause in at least two respects: They are much

more severe than penalties for possessing drugs such as

barbiturates and amphetamines that are much more

dangerous than marijuana and, secondly, they are equally

severe as penalties for possessing narcotic drugs such as

heroin and cocaine, that are much more dangerous than

marijuana. See Skinner v. Oklahoma, 316 U.S. 535 ( 1942)

and McLaughlin v. Florida, 379 U.S 184 (1964). The

principle in both cases is that it is “invidious

140bviously favorable resolution of the questions presented is of

utmost importance to Petitioner himself, but more Significantly to

some 700 youths who have been convicted of Marijuana possession

and are confined in the Texas Department of Corrections, to the

unknown thousands who have been arrested for marijuana

possession in Texas and the minimally estimated 800,000 Texas

citizens who use it, ‘Marijuana in Texas,”” A Report to the Senate

Interim Drug Study Committee, March 1972, pp. 42, 35-38, 15.

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— BLED IAEGPR TE IE BEIT LEAL stench es

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discrimination’ when the state “lays an unequal hand on

those who have committed intrinsically the same quality of

offense. ...”’

it would also seem to be a necessary corollary of Skinner

and McLaughlin, if not a clear mandate of the Equal

Protection Clause, that a state may not impose the same

penalties for offenses that are of intrinsically different

quality. In other words, a state may not, as Texas has

done, impose the same sentences for marijuana offenses

as for narcotic drug offenses which are intrinsically more

dangerous. As the court stated in Skinner, ‘The Equal

Protection Clause would indeed be a formula of empty

words if such conspicuously artificial lines could be

drawn,” 316 U.S. at 542. Here, due to the ‘‘conspicuously

artificial lines’ of an overly broad statute, Petitioner,

convicted of a marijuana offense, has been made to suffer

the very same harsh penalty that is attendant upon

offenses involving extremely more dangerous narcotic

drugs. This ‘‘equal treatment of unequals’” constitutes

invidious discrimination for which there is no justification.

See State v. Zornes, 469 P.2d 552 at 560 (Wash., 1970) and

People v. Sinclair, 387 Mich. 91, 194 N.W.2d 828 at 894

(Mich., 1972).

In sum, it appears that there is no state interest,

compelling or reasonable, that can justify discriminatory

punishment such as inflicted upon Petitioner here. The

Texas court has decided the issue in a way probably not in

accord with applicable decisions of this Court and grant of

certiorari is appropriate to resolve the federal question of

15,5 the plurality opinion in McCabe, supra, held: ‘‘We do not find

a rational basis for the classification, a consequence of which is that

one first convicted of the sale of marijuana must without qualification

receive a sentence ten times greater than one permitted to be

imposed upon one convicted for the first time of a sale of drugs under

the Drug Abuse Act.”

= es

AI MPRA AMADIS RE SE AP a 6 eRe RT CGAL TER ETE ET Se

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substance thus presented.

ll.

THIS CASE RAISES A SIGNIFICANT QUESTION

CONCERNING APPLICATION OF FOURTH

AMENDMENT REQUIREMENTS TO A WAR-

RANTLESS SEARCH BASED UPON A “FIRST

TIME” INFORMANT.

It is now well settled that ‘‘the standards applicable to

the factual basis supporting the officer’s probable cause

assessment at the time of the challenged arrest and search

are at least as stringent as the standards applied with

respect to the magistrate’s assessment,” Whiteley v.

Warden, 401 U.S. 560, 91 S.Ct. 1031 (1971); Beck v. Ohio,

379 U.s. 89, 85 S.Ct. 223 (1964). Since the seizure and

search in the instant case preceded the arrest, application

of the settled rule means that the tests of Aguilar v. Texas,

378 U.S. 108, 84 S.Ct. 1509, as further explicated in Spinelli

v. United States, 393 U.S. 410, 89 S.Ct. 584 (1969) must be

met. We urge that the competent testimony, particularly

on motion to suppress, does not provide enough

information to support issuance of a search warrant® it

was “a first time’ telephone call from one acting on

suspicions of two others regarding contents of brown

paper bags wrapped in plastic containers in a partially

Opened suitcase — contents no one had actually seen

before the Austin officer tore into one of the brown bags,

extracted some substance and felt and smelled it. Missing

16Petitioner strongly challenges accuracy of the findings recited on

the first page of the opinion of the Court of Criminal Appeals of Texas

and will urge this Court to ‘‘make an independent examination of the

whole record,"’ Edwards v. South Carolina, 372 U.S. 229. 235, 82

S.Ct. 680, 683 (1963) to make certain that the principles of the Fourth

Amendment have been constitutionally applied.

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ile

in the equation are ‘‘some of the underlying circumstances

from which the officer concluded that the informant. . .

was ‘credible’ or his information ‘reliable’."’ The officer's

later statement of what he “‘felt’’ concerning the reliability

of the ‘’Braniff personnel” is no more than “a bare

statement by an affiant that he believed the informant to

be truthful’ and does not provide ‘’a factual basis’ for

crediting it, United States v. Harris, 403 U.S. 573, 579, 91

S.Ct. 2075, 2080 (1971).

Thus, a serious constitutional question of substance is

raised that calls for determination by this Court to the end

that law enforcement officers, the courts and litigants alike

can confidently confront and resolve problems involving a

warrantless seizure and search.

CONCLUSION

For these reasons Writ of Certiorari should issue to

review the judgment of the Court of Criminal Appeals of

Texas.

Respectfully submitted,

CLINTON & RICHARDS

600 West 7th Street

Austin, Texas 78701

By:

Sam Houston Clinton, Jr.

COUNSEL FOR PETITIONER

=

RS RL ASE | ee a Machi atc S

CERTIFICATE OF SERVICE

|, Sam Houston Clinton, Jr., a member of the Bar of the

Supreme Court of the United States, do hereby certify that

three copies of the foregoing Petition for Writ of Certiorari

: have been personally served on counsel for Respondent by

: delivery thereof to the office of Hon. John Hill, Attorney

General of Texas, Supreme Court Building, Austin, Texas,

and at the office of Hon. Robert O. Smith, Travis County

District Attorney, Travis County Courthouse, Austin,

| Texas, this 14th day of February, 1973.

SAM HOUSTON CLINTON, JR.

LAS A BES EIST ROE ISIE EET REA

APPENDIX

a

APPENDIX “‘A”’

CLEVE M. HATTERSLEY, Appellant

NO. 45,192 Vv. Appeal from Travis County

THE STATE OF TEXAS, Appellee

or ih § Oe

The offense is possession of marijuana; the punishment,

seven (7) years.

Trial was before the court without the intervention of a

jury.

Braniff ticket agent James Barry testified that just prior

to 9:00 a.m. on August 31, 1970, the appellant bought a

ticket under the name ‘’J. English” for a flight to Newark,

New Jersey, departing at 9:00 a.m. Barry checked in the

appellant’s suitcase, which was tied at one end with a

string and attached a claim check for it to the appellant's

ticket. When Barry next observed the suitcase, in the

baggage room, ‘‘the string had popped open” and the

contents were clearly visible without manual intervention

by the attendants. Barry and Braniff agent Joseph

Wilkinson, who was also present in the baggage room,

stated that they saw the suitcase contained plastic bags

with brown bags inside them. They detected an odor of

cosmetic powder and then an odor of marihuana

emanating from the luggage. They testified they

recognized the odor of marihuana from previous occasions

when they discovered similar substances which narcotics

fficers later identified as marihuana. The suitcase

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containing the suspected contraband was sent to the

airplane, with the string still untied, while Barry and

Wilkinson reported their findings to their superior who in

turn notified Captain Harvey Gann of the Austin Police.

When Gann arrived at the airport he verified the agents’

conclusion, seized the contraband, and arrested the

}

appellant. |

|

The facts and circumstances of this case are very similar

to those in Chaires v. State, 480 S.W.2d 196. That offense,

which occurred the day after the instant events, also

concerned the discovery of marihuana at Austin Municipal

Airport and involved practically the same airline agents and

police officers. |

Appellant's first two grounds of error relate to probable

cause to search the appellant's suitcase. Some years ago )

in Heath v. State, 276 S.W.2d 534, this court discussed the

rule earlier announced in Crowell v. State, 180 S.W.2d 343, |

that “if one is foolish enough to leave his windows

uncurtained he may not complain if another . . . observed

an illegal act being committed therein.”’ Cf. Thompson v.

State, 447 S.W.2d 175, cert. denied 90 S.Ct. 1709, 398 U.S.

912, 26 LEd.2d 73. We say here that if one is careless

enough to carry contraband in a faulty suitcase he may not

complain if another observes the contraband when the bag

opens itself by its own weight. Further,

“After the Braniff employees, by sight and smell,

determined that the bags contained marihuana, and

reported their findings to the police, the police, upon

seeing the bags and smelling the contraband, clearly

had probable cause to seize the luggage and to arrest

the offenders.”’ Chaires v. State, 480 S.W.2d 196.

Appellant's third contention challenges the warrantless

search of his luggage by the police. He claims that the

officers should nave obtained a search warrant. The same

a

contention was raised in Chaires v. State, 480 S.W.2d 196,

where we concluded that:

“It is uncontested that the airliner was scheduled to

leave for Washington, D.C., at 9:00 a.m., and that the

entire episode began shortly after 8:30 a.m. when

appellant arrived at the airport. We, therefore, find no

merit in appellant's contention that since the Austin

police knew the craft would be continually airborne

for over two and one half hours, they should have

refrained from action and_ instead wired their

suspicions ahead to Washington, D.C., officials.

Likewise, we find no merit in his other contention that

since the airline officials had the authority to withhold

the luggage from the flight, they should have done

so, and thereby afforded officials an Opportunity to

obtain a warrant. Such an approach disregards the

practical aspects of law enforcement. When the

Austin police were informed that the contraband was

abord an airliner, due to depart in minutes, they had

probable cause to inspect the suspect cargo and,

after verifying the agents’ suspicions, to seize it and

arrest Its Owners, before one or all were flown from

their jurisdiction."’

Ground of error number four relates to the court's failure

to strike Captain Gann’s testimony concerning his

subjective opinion about the reliability of witnesses Barry

and Wilkinson. Since this was a trial before the court, we

may assume that the court did not consider any

inadmissible evidence. Larocca v. State, 479 S.W.2d 669.

The evidence reflects sufficient probable cause.

Ground of error number five contends that the evidence

in insufficient to show appellant knew the suitcase

contained marihuana. Barry testified, as noted earlier, that

he attached a claim check to the appellant's ticket for the

.

. leh 2 EIN EA EL ARN at OR a ua

Rr eyuvndNs in PUD AR ATEN ee is De ia * eh ptt se

at osc

suit. ase which the appellant checked in. The State

troduced the suitcase and the ticket into evidence. The

aumber on the claim check of the ticket and the number on

the suitcase are identical. The evidence is sufficient to

show the appellant owned the luggage and possessed the

contraband.

Ground of error number six is that the judgment is based

upon demonstrably false testimony. The appellant

discusses, at some length, what he considers is a conflict

in the testimony. Nowhere does he mention the fact that

the suitcase in the case at bar opened itself thereby

displaying to the world the marihuana it contained. This

suitcase was connected to the appellant by the evidence

that he had checked it in and retained the claim check for

it. The trial judge nad before him sufficient evidence to

support this conviction, and it will be presumed that he

resolved any conflict in the testimony. We find that there

was sufficient evidence before the court to establish the

appellant was guilty of the crime charged. Montes v. State,

473 S.W.2d 34.

The judgment is affirmed.

Morrison, Judge

(Delivered September 25, 1972)

ee

APPENDIX “’B”

CLERK’S OFFICE, COURT OF CRIMINAL APPEALS

OF TEXAS

AUSTIN, TEXAS

|, GLENN HAYNES, Clerk of the Court of Criminal

Appeals of Texas, do hereby certify that in Cause No.

45,192 styled:

CLEVE M. HATTERSLEY, Appellant

vs.

STATE OF TEXAS, Appellee

judgment of the 147th JUDICIAL DISTRICT COURT OF

TRAVIS County, Texas, was affirmed on SEPTEMBER 25,

1972, Appellant's Motion for Rehearing was overruled,

without written opinion, NOVEMBER 15, 1972, and on

DECEMBER 19, 1972 mandate issued.

THEREFORE, with the overruling of Appellant’s Motion

for Rehearing, this cause was disposed of by this Court on

NOVEMBER 15, 1972, appellant having exhausted all

remedies in this, The Court of Criminal Appeals of Texas,

and said judgment has now become final on the docket of

this Court.

WITNESS my hand and Seal of said Court, at office, in

Austin, Texas, this the 15th day of FEBRUARY, A.D. 1973.

GLENN HAYNES, Clerk of the Court

of Criminal Appeals of Texas

Seal

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