Petition for a Writ of Certiorari — Dragna v. California

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INDEX

Sussect INpDEx

Petition for Writ of Certiorari................

Opinion of Court Below............. Site

Summary Statement of Matters Involved.......

Jurisdictional Statement.....................

How Federal Question Raised in Trial Court.

How Federal Questions were Raised in Appellate

Ra er gee Part aly Speier MEARE Mig Oi ey

Manner in Which Federal Questions Were Dis-

posed of by Appellate Court...

Gucstions Premeeed ... 5. 55k eee eae

Reasons Relied Upon for Granting the Writ... .

Certified Transcript of Record Filed with Peti-

ee RELEASES AAR

I

Opinion of the Court Below ..................

II

IN os oo a 8 EES ERS pS CS ETE

Ill

kh nomen re sear pr

IV

Specification of Errors ..................-...-

ARGUMENT I

Due process of law is not heedless of the manner

in which evidence is obtained. ..............

ArcuMEnT II

Section 653h of the Penal Code of the State of

California is repugnant to the due process of

law clause of the XIVth Amendment to the

United States Constitution .................

—4052

eee ee ee Ee ee

ae he rn Pe Pela ok FEN

ii INDEX

ArcuMEntT IIT Page

Section 647, subdivision 5 of the Penal Code is so

vague and uncertain in its terms so that the

prosecution of petitioner thereunder consti-

tuted a denial to him of due process of law. ._. 23

ArGcuMEnNT IV

The jury instruction defining Section 647, sub-

division 5 of the Penal Code of the State ».¢

California was erroneous and the giving uf

the same resulted in a denial of due process

of law to your petitioner.............. 24

Reference to pending case of Edelman v. People

of the State of California involving constitu-

tionality of California State Penal Code See-

tion 647, subdivision5...-..... 24

Conclusion = oe EE Ee ee eg ae 25

TaBLe or AuTHorities CITED

Cases:

Brown v. Mississippi, 297 U.S. 278... _.. +e BAN a

Buck v. California, 82 L. Ed. 277,382. ss... 6

California v Zook, 336 U.S. 725........... 22.22...

Connolly v. General Construction Co., 296 U.S. 385.. 1? 23

Herndon v. Lowry, 301U.S.242.... 125

Herrscher v. State Bar, 4 Cal. 24 399... sss 20

In re Polizetto, 128 Cal. 410....................... 93

Lanzetta v. New Jersey, 306 U.S.451........... . 13,12 90

Palko v. Connecticut, 302 U.S.319 ................

ee i

People v. Gonzales, 20 Cal. 2d165.................. =

People v. LeDoux,155Cal.535....--«.«s«sissssisistst 20

People v. Mayen, 188 Cal. 237.....................

Rochin v. California, 72 Supreme Court 205, 96 L. 21

Re AS PN ok RA . 12, 1793

Steffanelli v. Minard, 96 L. Ed. 99. . 14, 17

Stromberg v. California, 283 U.S. 359, 75 L. Ed. 93

nee mae oy a nia ks d kus oa «cd us . 13,18

INDEX ili

Page

Twining v. New Jersey, 211 U.S. 78 . é 20

United States v. L. Cohen Grocery Co., 295 U.S. 81, 65

OS AS Se ena aen 13, 17, 23

Winters v. New York, 333 U. S. 507, 92 L. Ed. 840 13, 24

Wolf v. Colorado, 338 U.S. 25, 93 L. Ed. 1782... 14, 17, 28

STATUTES

California Constitution, Article VI, Section 4, 4b,

beg hee I oe PERE PET EC Tee 6

California Penal Code Section 647, Subdivision 5

2,5, 10, 19, 23

California Penal Code Section 653h 5, 9, 10, 13, 17, 18, 21, 22

California Penal Code Section 1259............... x

Judicial Code Section 1257, Title 28................ 15

Rules of the United States Supreme Court, Rule 12(1)

RR Nai ata a re ree 15

United States Constitution, Fourteenth Amendment,

16, 17, 18, 19, 20, 21

ORDINANCES

Los Angeles Municipal Code, Ordinance No. 77,000,

a ae a a ee Be Natit tl Ree 2

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

No. 365

JACK DRAGNA,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent

PETITION FOR WRIT OF CERTIORARI

To the Honorable Fred Vinson, Chief Justice, and to the

Associate Justices of the Supreme Court of the United

States:

Jack Dragna, the above named petitioner, prays that a

Writ of Certiorari be issued by this Court to review a judg-

ment of the Appellate Department of the Superior Court of

the State of California, in and for the County of Los An-

geles, affirming a judgment of conviction of the Municipal

Court, City of Los Angeles, County of Los Angeles, State

of California; and in this behalf petitioner respectfully

shows:

Opinion of the Court Below

The Opinion of the Appellate Department of the Superior

Court was rendered on April 25, 1952, and is reported in

a , nant iis.

the record at pages 357 to 360, and a Petition for Rehearing

was denied May 5, 1952 (R. 377).

I

Summary Statement of Matters Involved

1. The Appellate Department of the Superior Court

affirmed the conviction and sentence of petitioner on two

counts of a complaint charging violation of Section 41.07

of Ordinance No. 77,000 of the Los Angeles Municipal Code

of the City of Los Angeles, State of California, and Section

647 Sub-section 5, of the Penal Code of the State of Cali-

fornia (R. 1).

2. The sentence affirmed was as follows:

Thirty (30) days in the County Jail on Count I, and

one hundred eighty (180) days in the County Jail on

Count II, sentences to run concurrently (R. 2; 333).

That on June 5, 1952, the Trial Court on resentencing

petitioner after the judgment was affirmed placed petitioner

on summary probation for three years, and modified the jail

sentence to thirty days on both counts to run concurrently.

3. The Complaint charged:

Count I. ‘‘. . . on or about the 11th day of March

1951 . . . a misdemeanor, to wit: Violation of Section

41.07 of the Los Angeles Municipal Code (Ord. No.

77,000) was committed by . . . Jack Dragna .. .

who .. . , did wilfully and unlawfully at and near

330 South Mariposa Street, in the City of Los Angeles,

resort to a room for the purpose of having sexual inter-

course and performing and participating in a lewd act

with a person to whom the said Defendant was not

then and there married.’’ (R. 1.)

Count II. ‘‘. . . on or about the 11th day of March

1951, at and in the City of Los Angeles, State of Cali-

fornia, a misdemeanor, to wit: Violation of subdivision

5 of Section 647 of the Penal Code of the State of Cali-

Or LAV ROAD Td AEA ER, HMRI MODENA 2

3

fornia was committed by . . . Jack Dragna . . ., who

at the time and place last aforesaid, was wilfully and

unlawfully a lewd and dissolute person.’’ (R. 1.)

This section of the Penal Code was attacked by petitioner

as being repugnant to the due process clause of the United

States Constitution and urged before the Appellate De-

partment of the Superior Court (R. 342).

4. The evidence in support of these charges introduced

by the prosecution disclosed the following facts:

(a) For eighteen months before the above criminal

proceedings were instituted against petitioner, he was

under police surveillance and that much of that time

petitioner was under twenty-four hours a day sur-

veillance (R. 97).

(b) That the police officers who were keeping the

petitioner under surveillance under instructions and

orders from their superior officer in the police depart-

ment, broke into petitioner’s abode at Los Angeles City

address, 849 South Kenmore, which was a one-room

apartment, sometime in 1950 and installed therein in

an over-stuffed chair a mechanical listening device and

connected the same by wire to a sound amplifying and

recording machine in the basement of a neighboring

apartment building, and by this process they assertedly

made plastic tape recordings of this petitioner’s con-

versations, both day and night, over a protracted

period of time (R. 18); (R. 138); CR. 27, 28, 84, 182).

These tapes were not produced at the trial, the police

asserting they had erased them after assertedly trans-

® mitting their contents to wax recording (R. 142; 200).

(c) That when petitioner changed his abode and

moved to Los Angeles, city address 330 South Mari-

posa, in 1951, the Los Angeles Police Department re-

peated this procedure, and petitioner’s home was again

broken into (R. 18); (R. 133). Two mechanical listen-

ing devices were installed therein. One device was

placed in a chair in petitioner’s living room (R. 99).

The other device was installed by the police officers in

= Pete eS ener Den *

the headboard of the petitioner’s bed in his bedroom

(R. 24, 25). One of these listening devices installed was

connected by wires to a tape recording machine in a

neighboring building (R. 19), and to the second listen-

ing device wires were connected which were strung

and ran to an outside telephone pole where they dan-

gled loose from the pole (R. 100).

(d) The police in autos stopped in the public street

before the petitioner’s abode, watched the activities of

petitioner through spyglasses through his window (R.

19); (R. 29, 54); (R. 173) and connected up a listening

device to the wires dangling from the pole to overhear

petitioner’s conversations and made tape recordings

in the neighboring apartment of all conversations and

sounds emanating from the petitioner’s abode, making

records of every intimate detail of petitioner’s life

(R. 173); (R. 104); (R. 114).

(e) The police shadowed petitioner constantly, plac-

ing themselves in a position to overhear conversations

between petitioner and other persons in public restau-

rants and buildings (R. 39); (R. 41); (R. 48).

The police took photographs of petitioner dining in

a public cafe (R. 51 (Peo. Ex. ‘*A’’)).

The police harassed the petitioner, following him

over the public highways in police cars (R. 40).

The police unlawfully arrested, held, and released

the petitioner’s son without cause (R. 101).

(f) That, over the specific objections and motions to

strike of petitioner (R. 55 to 64, 69); (R. 147, 148); (R.

184; 203; 241) the trial court admitted testimony of

police officers as to two or three asserted conversations

between the petitioner and a woman in the abodes of

petitioner above referred to, assertedly overheard by

the police through the medium of the mechanical listen-

ing devices hereinbefore referred to (R. 69, 70, 77; 87,

95, 96; 190).

That these asserted conversations constituted sub-

stantially all the evidence in support of Count I and

Count II charged in the complaint.

The rulings of the trial court on the objections of

petitioner that the evidence was illegally obtained in

4

J

violation of petitioner’s State and Federal constitu-

tional rights were assigned as erroneous and were

argued before the Appellate Department of the Su-

perior Court as erroneous (R. 342; 340; 548) and con-

sidered by that court (R. 358), which held, ‘It is true

that the evidence was obtained as the result of a fla-

grant violation of the principle that a man’s home is

his eastle.’’

5. The trial court at the request of the prosecution

instructed the jury as follows:

‘¢You are instructed that it is lawful for any (regular

salaried) peace officer to install and use a dictograph in

any house, room, or apartment, where (expressly)

authorized by the head of his office or department, when

such use or installation is necessary in the performance

of their duties in detecting crime and in the apprehen-

sion of eriminals.’’ (R. 298; 321, 322).

This instruction was given by trial court by virtue of

Section 653h of the Penal Code of the State of California.

This instruction was urged before the Appellate Depart-

ment of the Superior Court as erroneous and that Section

653h of the Penal Code of the State of California was in

violation of and repugnant of the Constitution of the United

States (R. 342; 345; 348; 349).

6. The Trial Court at request of prosecution when de-

fining the offense of vagraney upon which petitioner is

being prosecuted (California State Penal Code Section 647

sub. 5) instructed the jury as follows:

‘‘You are instructed that Webster’s Unabridged

Dictionary defines dissolute as ‘loosed from restraint,

unashamed, lawless, loose in morals and conduct, reck-

lessly abandoned to sensual pleasures, profligate, wan-

ton, lewd, debauched.’’ (R. 293; 319).

temo

6

II

Jurisdictional Statement

The jurisdiction of this court is invoked under Section

1257 of Title 28 of the United States Code. Said judgment

of the Appellate Department of the Superior Court of the

State of California, in and for the County of Los Angeles is

a final judgment (Calif. Const. Art. VI See. 4,4b&5). That

the Appellate Department of the Superior Court of the

State of California, in and for the County of Los Angeles,

is the highest court of the State of California in which a

decision of this ease could be had (Calif. v. Zook, 336, U.S.

725, Buck v. Calif., 82 L. Ed. 377 at 382). That your peti-

tioner contends that he has been deprived of due process of

law, all as guaranteed to him by the Fourteenth Amendment

to the United States Constitution by the governmental

agencies of the State of California in that:

(1) Petitioner’s case was submitted by the prosecu-

tion to a jury in the Municipal Court of the City of Los

Angeles, County of Los Angeles, State of California for

a decision on the question of his guilt or innocence on

misdemeanor criminal charges. That the evidence re-

lied upon the support of petitioner’s conviction was

illegally obtained without a search warrant and as the

result of an unreasonable search and through arbitrary

intrusion by the local police into petitioner’s personal

privacy. (See Summary Statement of Matters In-

volved—Supra. )

(2) That Section 647, Subdivision 5 of the Califor-

nia State Penal Code, the provisions of which your

petitioner was prosecuted for violating, is vague and

uncertain in its effort to describe a public offense and

affords no ascertainable standard of accountability,

and your petitioner’s prosecution thereunder was a

denial to him of due process of law as guaranteed to

him by the Fourteenth Amendment to the United

States Constitution. The interpretation of this offense

the trial court gave the jury (at petitioner’s trial) in

—— cadet I Rea Pees

its charge to them (R. 293; 319) so broadened the scope

of the statute to include innocent acts and made it more

vague and uncertain, so that the enforcement of this

statute against petitioner constituted a denial of due

process of law, all as guaranteed him by the Four-

teenth Amendment to the Constitution of the United

States.

(3) That Section 653h of the Penal Code of the

State of California is an affirmative sanction by the

legislative branch of the state government of Cali-

fornia of illegal police incursion into petitioner’s pri-

vacy, and constitutes a violation of the guarantee of

due process of law as contained in the Fourteenth

Amendment to the Constitution of the United States.

The state trial court in giving an instruction incorpo-

rating the language of this code section (R. 298; 321,

322), and charging the jury that it was lawful for the

police to install and use a dictograph in petitioner's

home without his permission and solely upon the ex-

pressed authority of the head of the police department

was a judicial sanction of a substantial violation of a

personal right of this petitioner to be secure in his house

against unreasonable search, which right is safe-

guarded by the due process of law clause of the Four-

teenth Amendment to the Federal Constitution.

That these rights under the Constitution of the United

States as above enumerated were specially set up by your

petitioner in the state courts.

III

How Federal Questions Raised in Trial Court

The stages in the proceedings in the Municipal Court of

the City of Los Angeles, County of Los Angeles, State of

California (the court of first instance) at which and the

manner in which the federal questions sought to be re-

viewed were raised in that lower court are as follows:

(1) That the question of ‘the introduction of the

illegally obtained evidence as set forth in the next

sae ae ee eee ee BN OS A ANS IN Ct Ba 8 ile ae

preceding sub-paragraph (1) was raised by objection

to its introduction on federal constitutional grounds

during the course of the trial. (R. 147, 148); (R. 184,

203); (R. 241); and by motions to strike such illegally

obtained evidence from the record after it was admitted

by the trial court. (R. 147, 148); (R. 241).

(2) The giving of instructions by the trial court

defining the offense of vagrancy as set forth in Sec-

tion 647, Subdivision 5 of the Penal Code of the State

of California (R. 293; 319); and (R. 319), was under

Penal Section 1259 of the State of California, automat-

ically deemed objected to by your petitioner in the trial

court by virtue of the fact that substantial rights of

your petitioner were affected thereby.

(3) The giving by the trial court of an instruction

to the jury which instruction embodied the language

of California State Penal Code Section 653h (R. 298 ;

321, 322) was automatically deemed objected to in the

trial court under the provisions of California State

Penal Code Section 1259 by virtue of the fact that the

substantial rights of this petitioner were affected

thereby.

IV

How Federal Questions Were Raised in Appellate Court

The state of the proceedings in the Appellate Depart-

ment of the Superior Court, of the State of California, in

and for the County of Los Angeles, at which, and the

manner in which, the federal questions sought to be re-

viewed were raised are as follows:

(1) Your petitioner specifically assigned as error

in the Appellate Department the overruling of peti-

tioner’s objections in the trial court to the introduc-

tion of evidence illegally obtained by the police in

contravention of the petitioner’s personal rights as

guaranteed said petitioner by the Constitution of the

United States. (R. 342); (R. 345); (R. 348).

(2) That your petitioner in his statement on ap-

peal as an assignnient of error asserted that Section

9

ae itate of

647, Subdivision 5 of the Penal Code of the Stace law

California was a violation of due process of to the

clause and in contravention of and repugnant he vaur

Constitution of the United States (R. 342). That ing by

petitioner further assigned as error the givin; , wore

the trial court of the dictionary definition of the Sti emar

dissolute as an instruction to the jury, said petiti¢, “

asserting such instruction was indefinite, confi 6

and unintelligible. (R. 349).

(3) That your petitioner in his statement On ace tL

peal assigned as error the admission of evidenc ol ie

legally obtained by city police officers under < a of

of authority of Section 653h of the Penal Cod,’ ¥

the State of California because it was in contra °’°"

tion of the defendant’s federal constitutional gud ts.

tee and in deprivation of defendant’s civil ri;"'® a.

(R. 342; 345, 348).

4

Manner in Which Federal Questions Disposed of * bY

Appellate Court

The manner in which the federal questions were so S°usht

to be were passed on by the Appellete Department o! of the

Superior Court of the State of California, in and fo: for the

County of Los Angeles, was as follows:

(1) In regard to the constitutional question o! of the

production and admission at the trial of your “T Petl-

tioner of illegally obtained evidence, the App@Pellate

Department in its memorandum opinion declarec’4:

‘It is true that the evidence was obtained a: 88 the

result of a flagrant violation of the principle tP that a

man’s home is his castle. We do not interprettet Sec-

tion 653th, Penal Code, as authorizing that suchuch was

done, and know of no authority other than th: that of

expediency that justified it. The time may come "¢ when

it will be held that evidence so obtained may n/ not be

used in the courts of the states, as it is now bs banned

oer

ky

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aac aasiveetcnenseniines: Pah le SAO S BO terete OR Ea Nei PS Ng SNS BRET cate 0 ale

10

from the federal courts. That is not now the rule in

this state, however."’ (R. 358, 359).

(2) In regard to the question of the constitutionality

of Section 647, Subdivision & defining the crime of

vagrancy and the interpretation given it by the trial

court in its instruction tc ihe jury, the Appellate De-

partment of the Superior Court declared:

‘*We are strongly inclined to the view that the word

‘dissolute,’ if given its dictionary definition, is too

broad a word validly to create the crime of vagrancy.

For example, a man may be ‘unashamed’ and yet

not guilty of conduct that may lawfully be made a

public offense. In upholding the constitutionality of

subdivision 5 of Section 647, Penal Code, the court,

in People v. Babb (1951), 103 Cal. App. 2d 326, 330,

229 P. 2d 843, 846, employed a more limited definition

of the word ‘dissolute’.’’

The Appellate Department of the Superior Court,

however, went on to say that this erroneous instruc-

tion did not in their opinion prejudice your petitioner.

(R. 359).

(3) In regard to the question of the constitution-

ality of 653h of the Penal Code of the State of Cali-

fornia incorporated by the trial court in a jury in-

struction (R. 298, 321, 322), the Appellate Department

of the Superior Court in its memorandum opinion de-

clared:

*‘We do not interpret Section 653h, Penal Code,

as authorizing that which was done, and know of no

authority other than that of expediency that justified

it’. (R. 358).

Petitioner has specifically quoted from the memor-

andum opinion of the Appellate Department of the Su-

perior Court of the State of California for loss of a

clearer manner of presenting his complaint that he

has been flagrantly deprived of due process of law as

guaranteed him by the Fourteenth Amendment to

the United States Constitution.

a ;

VI

Questions Presented

The questions herein presented are as follows:

Question 1.

Does evidence obtained by local police in the State

of California as the result of a ‘‘flagrant violation of

the principle that a man’s home is his castle’’, when

admitted against a person in a criminal prosecution

of the state court, constitute a denial to him of the

guarantee of due process of law as contained in the

Fourteenth Amendment to the United States Con-

stitution?

Question 2.

Is it a denial of due process of law as guaranteed

by the Fourteenth Amendment of the Constitution of

the United States to prosecute a person on and to en-

force against a person a California State Penal Statute

(Section 647, Subdivision 5) which is itself uncertain

and made more vague and uncertain by a trial court’s

instruction to the jury that broadens the scope of such

a penal statute to include innocent acts?

Question 3.

Where a California state law (Penal Code Section

653h affirmatively sanctions arbitrary police intrusion

into a person’s privacy solely upon the express au-

thority of the head of the Police Department or the

District Attorney, does such a statute run counter

to the due process guarantee as contained in the

Fourteenth Amendment to the United States Con-

stitution.

Question 4.

Is the due process of law clause of the Fourteenth

Amendment of the United States Constitution heedless

of the manner in which evidence is obtained for use

in state courts, or as otherwise stated, is a person de-

BBisestansititsrs x 14 umatiae Etr? ~—

Pe, ee eee en eS ee ee es

12

nied his federal constitutional rights to due process

where the local police after extended and persistent

surveillance and harassment of a person, under color

of authority gathered from a statute such as Section

653h of the Penal Code of the State of California, sub-

ject a person within the State of California to the de-

privation of his personal right to be secure in his home

by breaking and entering the home without permission,

or any judicial order, and installing and maintaining

therein a dictagraph through which medium all con-

versations of such person over a period of months are

recorded and used as evidence to convict him in a mis-

demeanor criminal prosecution in a state court?

VII

Reasons Relied upon for Issuance for Allowance for Writ

Reason 1

That the Appellate Department of the Superior

Court of the State of California, in and for the County

of Los Angeles, in the instant case, decided a federal

question of substance in favor of the respondent and

against your petitioner as to said petitioner’s constitu-

tional guarantee of due process of law under the Four-

teenth Amendment to the United States Constitution.

The state court held in substance that due process of

law is heedless of the means by which relevant evidence

is obtained. That evidence obtained by the local police

‘fin flagrant violation of the principle that a man’s

home is his castle’ is properly admissible at the trial

in the California State Courts and can be used to con-

vict a person of a public offense, which decision is not

in accord with the decisions of this court, including

the case of Rochin v. California, 72 Supreme Court 205,

96 Lawyer’s Edition, 154.

Reason 2

That the Appellate Department of the Superior

Court of the State of California, in and for the County

2 Na Sa NN RD te (AN ACNE NED Ba EME EDI BI OE te DOH eS ee ae

13

of Los Angeles, decided a federal question of substance

involving the guarantee of due process of law as con-

tained in the Fourteenth Amendment to the United

States Constitution. The Appellate Department in its

memorandum opinion held that petitioner’s conviction

under the provisions of Section 647, Subdivision 5 of

the Penal Code of the State of California declaring

every lewd and dissolute person to be a vagrant was

sustainable even though the trial court in interpreting

such vague and uncertain statute for the jury

broadened its scope to include innocent acts and made

the statute still more vague and uncertain. The said

Appellate Department in effect ruling against peti-

tioner’s specific objection made to said court that

through the statute and by the instruction interpreting

the same your petitioner was denied due process of

law as guaranteed to him by the Fourteenth Amend-

ment to the United States Constitution. That this

decision of the State Court is not in accord with the

decision of this Court, including the cases of Strom-

berg v. California, 283 U. S. 359, 75 Lawyer’s Edition

1117; Winters v. New York, 333 U. S. 507, 92 Lawyer’s

Edition 840; Lanzetta v. New Jersey, 306 U. S. 451;

United States v. L. Cohen Grocery Co., 225 U.S. 81, 65

Lawyer’s Edition 516.

Reason 3

A decision of this court is necessary to determine

whether a state statute (California Penal Code Section

653h) which affirmatively sanctions and allows the

installation and use by the police of a dictagraph in

a person’s home without his permission when the Dis-

trict Attorney or Chief of Police expressly authorized

such installation and use for the purpose of obtaining

evidence to be introduced against such a person in a

criminal prosecution is repugnant to and in contraven-

tion of the due process of law clause contained in the

Fourteenth Amendment of the United States Constitu-

tion. That the decision of the Appellate Department

of the Superior Court of the State of California, in and

Betisecscas Pre EAA IS 26

7 ci

14

for the County of Los Angeles on the foregoing propo-

sition is not in accord with the decision of this court,

including the cases of Wolf v. Colorado, 338 U. 8. 95,

93 Lawyer’s Edition 1782; Steffanelli v. Minard, 96

Lawyer’s Edition 99.

Petitioner presents to this Court and files herein as an

Exhibit hereto, a duly certified transcript of the entire

record in the case as the same appears in the Appellate De-

partment of the Superior Court of the State of California,

in and for the County of Los Angeles.

WHuererorg, your petitioner prays that a writ of certio-

rari issue to the Appellate Department of the Superior

Court of the State of California, in and for the County of

Los Angeles, to the end that the errors aforesaid may be

corrected by this Court.

Joun Watsa,

Attorney for Petitioner.

RicHarp CaNnTILLON,

Frank Destmone,

Of Counsel.

a a a

15

BRIEF IN SUPPORT OF PETITION

I

Opinion of the Court Below

The memorandum opinion of the Appellate Department

of the Superior Court of the State of California, in and for

the County of Los Angeles, is to be found at Page 357 to

Page 360 in the record.

II

Jurisdiction

1. The judgment of the Appellate Department of the

Superior Court to be here reviewed was rendered on April

25, 1952 (R. 360). A petition for rehearing which was duly

filed was denied by the Appellate Department of the Supe-

rior Court on May 5, 1952 (R. 377). That on July 24, 1952

upon application duly made by your petitioner the Honorable

Harold H. Burton, Associate Justice of this Honorable

Court, made an order extending the time for filing a petition

for a writ of certiorari in this court to and including Sep-

tember 30, 1952.

2. The jurisdiction of this court is invoked under Section

1257, Subdivision 3 of the Judicial Code. In the petition the

requirements of Rule 12 (1) (Paragraph 3rd) are fully

complied with and said petition contains a summary state-

ment of the matters involved, and jurisdictional statement

how the federal questions were raised in the trial court, how

the federal questions raised in the Appellate Court and the

manner in which the federal questions were disposed of by

the Appellate Department of the Superior Court of the

State of California, in and for the County of Los Angeles.

3. The petitioner was prosecuted based upon a complaint

containing two misdemeanor counts (R. 1). Count One

charged the petitioner with resorting to a room for the

purpose of illicit sexual relations (R. 1). Count Two

charged the petitioner with being a vagrant in that peti-

a. a ae ll

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16

tioner is a lewd and dissolute person. All the evidence pro-

duced by the prosecution to support these respective

charges was illegally obtained through a flagrant violation

of the principle that ‘‘a man’s home is his castle’, This

proposition is conceded by the Appellate Department of

the Superior Court (R. 358), which held in effect that such

evidence so illegally obtained was nevertheless admissible

in the state court of California to support the conviction of

your petitioner, and the Appellate Department ruled

against objection and in so doing overruled petitioner’s

objection to said evidence on the ground that the admission

of the same against him was a denial to him of due process

of law as guaranteed by the Fourteenth Amendment of the

United States Constitution (R. 358, 359).

Section 647, Subdivision 5 of the Penal Code of the State

of California which is the Penal provision upon which

count II of the complaint is based, simply declares every

lewd and dissolute person to be a vagrant. This statute

petitioner contended does not furnish a sufficient standard

of accountability for the government of human conduct be-

cause it is by its terms too vague and uncertain, and a

prosecution thereunder constitutes a denial to a person of

due process of law (R. 319; 342). The Appellate Depart-

ment of the Superior Court ruled against petitioner’s con-

tention (R. 359), which was squarely before that court on an

assignment of error (R. 342). The jury instruetion given by

the trial judge defining the word dissolute so broadened the

scope of the offense (violation of California State Penal

Code, Section 647, Subdivision 5) so as to include innocent

acts (R. 293; 319). This proposition was econeeded by the

Appellate Department (R. 359), which endorsed the consti-

tutionality of the Penal Code Section and held that the defi-

nition given by the trial judge so broadened the language of

the penal statute so as to include innocent acts did not preju-

dice the defendant or to in any effect deny him due process

RIAL ea aR, i RAGES ALL ME RUNES ANNIE GS. ba NABe Sat Dhan ANE A ARORA ANTS ARE TESNE RIES CADENA MO ahh Dike AAPOR SAP as WA YL RA AN

17

of law as guaranteed by the Fourteenth Amendment of the

United States Constitution (R. 359). That section 653h

of the Penal Code of the State of California which the trial

court considered as vesting the right in the local police to

break into a person’s home solely upon the express au-

thority of the head of the Police Department (R. 298; 321,

322) and to install and use a dictograph in said home to hear

and record all conversations and use them as evidence

against your petitioner at his trial is in effect a state legisla-

tive sanction of police incursion into a person’s privacy. The

Appellate Department of the Superior Court overruled

petitioner’s objections and assignments of error based upon

the unconstitutionality of this penal code section (R. 358,

359).

That all these federal questions were duly presented by

petitioner in accordance with California state practice and

procedure, and the same were presented for the decision of

the highest court of the state having jurisdiction over the

subject matter (R. 342, 345; 348; 349). A decision on these

respective federal questions was necessary to a just deter-

mination of your petitioner's cause. It is apparent from the

very nature of the federal questions raised in the memoran-

dum opinion of the Appellate Department that the judgment

as rendered by the Appellate Department could not have

heen given without passing upon these federal questions.

That all of the matters above recited involve questions con-

cerning the guarantee of due process of law as contained in

the Fourteenth Amendment to the United States Constitu-

tion and as it related to the prosecution of your petitioner

on criminal charges in the state courts of California.

4. The cases believed to sustain said jurisdiction are as

follows: Rochin v. California, 72 Sup. Ct. 205, Wolfe v.

Colorado, 338 U. 8. 25, Stefanelli v. Minard, 96 Lawyer’s

Edition 99, Connolly v. General Construction Co., 296 U.S.

385, Lanzetta v. New Jersey, 306 U. S. 451, United States v.

ee.

18

Cohen Grocery Co., 255 U. 8. 81, Stromberg v. California,

283 U. S. 359, Herndon v. Lowry, 301 U. 8. 242, Winters y.

New York, 333 U. 8S. 507.

III

Statement of Case

This has already been stated in the preceding petition for

review by certiorari under paragraph I at Page 2 to Pave

6 of said petition, which statement of the case is hereby

adopted and made a part of this brief, by reference.

IV

Specification of Errors

1. The Appellate Department of the Superior Court

erred in holding that evidence obtained as the result

of ‘‘a flagrant violation of the principle that a man’s

home is his castle’’ is properly admissible in a criminal

prosecution in a California state court and that such

police practice is not repugnant or in contravention

of the due process of law guarantee as contained in

the Fourteenth Amendment to the Constitution of the

United States.

2. Section 653h of the Penal Code of the State of

California is a legislative sanction of arbitrary police

incursion into privacy for the purpose of obtaining

evidence for a criminal prosecution against a person

without judicial authority and therefore, runs counter

‘to the guarantee of due process of law contained in the

Fourteenth Amendment to the United States Constitu-

tion, and the Appellate Department of the Superior

Court was in error in failing to so hold.

3. That the Appellate Department of the Superior

Court erred in holding that the manner in which

relevant evidence is obtained for use in a state court

19

in a criminal prosecution is not within the purview of

the due process of law clause of the Fourteenth Amend-

ment to the United States Constitution.

4. That the Appellate Department of the Superior

Court erred in not holding Section 647, Subdivision 5

of the Penal Code of the State of California as so

vague and uncertain in its terms so that a prosecution

thereunder in the state court constituted a denial of

the guarantee of due process of law as contained in

the Fourteenth Amendment to the Constitution of the

United States.

5. That the Appellate Department of the Superior

Court erred in not holding the jury instruction given by

the trial judge defining the vague and uncertain statute

creating the offense of vagrancy in such terms that it

broadened the scope of the statute so as to include

innocent acts and made said statute more uncertain,

was a denial to your petitioner of due process of law,

all as guaranteed by the Fourteenth Amendment to the

Constitution of the United States.

ARGUMENT I

Due Process of Law Is Not Heedless of the Manner in Which

Evidence Is Obtained

The following argument supports the contention of peti-

tioner under this specification of error number -1- and

number -3-.

The Appellate Department of the Superior Court de-

clared the evidence produced against petitioner at his trial

was obtained as the result of a flagrant violation of the

principle that a man’s home is his castle (R. 358).

20

The Fourteenth Amendment to the United States Consti-

tution Provides That No State Shall Deprive Any Per.

son of “Life, Liberty or Property Without Due Process of

Law.”

The phrase ‘‘due process of law”? as it applied to the use

of illegally obtained evidence in criminal proceedings in the

State of California has been limited to the right that the

criminal trial be fair and impartial.

People v. Gonzales, 20 Cal. 2d 165.

The rule has been laid down repeatedly by the courts of

California that they will not be concerned by the manner

in which the evidence produced at the trial was obtained.

People v. Mayen, 188 Cal. 237 ;

In re Polizette, 128 Cal. 410;

People v. LeDouz, 155 Cal. 535;

Herrscher v. State Bar, 4 Cal. 2d 399.

The only exception that the courts of this state recog-

nized to the above rule was in the case of confessions

forcibly obtained.

People v. Gonzales, supra, citing:

Palko v. Connecticut, 302 U. 8. 319;

Chambers v. Florida, 309 U.S. 227;

Brown v. Mississippi, 297 U. §. 278;

Twining v. New Jersey, 211 U. S. 78.

This exception exists in California, not because the con-

fession was obtained in an illegal manner contrary to the

immunities guaranteed a citizen by the ‘‘due process

clause.’’ It exists because such evidence so obtained is so

unreliable that its use against a defendant in a criminal

trial prevents the trial from being fair and impartial, and

thereby denies to the defendant ‘‘due process of law.’’

People v. Gonzales, supra.

21

The second day of January, 1952, the Honorable Supreme

Court of the United States expressly rejected the Califor-

nia rule that a defendant in a criminal case is only denied

‘‘due process of law’’ when the trial is not fair or impartial.

Rochin v. California, 7 Sup. Ct. 205.

The People introduced into evidence capsules containing

morphine which were illegally sequestered from the ab-

domen of the defendant. There was nothing in the nature

of the evidence itself, or in the manner in which it was ob-

tained that rendered it so unreliable that its use at the trial

would deprive the defendant of a fair and impartial trial.

Rochin v. California, 72 Sup. Ct. 205.

The United States Supreme Court did declare ‘‘I# has

long since ceased to be true that due process of law is heed-

less of the means by which otherwise relevant and credible

evidence is obtained.’’ (Emphasis ours.)

Rochin v. California, supra.

The United States Supreme Court reversed the Califor-

nia judgment solely because of the manner in which the

evidence was obtained when it stated that due process of

law is a summarized constitutional guarantee of respect

for those personal immunities so rooted in the traditions

and conscience of our people as to be ranked fundamental

and implicit in the concept of ordered liberty.

Rochin v. California, supra.

ArGcuMEntT II

This argument is given in support of specification of

error number 2.

Section 653h of the Penal Code of the State of Cali-

fornia is repugnant to the due process of law clause of

the Fourteenth Amendment to the United States Con-

stitution.

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22

Penal Code Section 653 (h) was in full force and effect

at the time of the police incursions upon the rights of the

defendant, guaranteed him under the United States Con-

stitution and the California Constitution, and reads as

follows:

“*653h. Unautnorizep INsTALLaTION oF Dictocrapus:

Grave or Orrense: Persons EXemprep. Any person

who, without consent of the owner, lessee, or occupant,

installs or attempts to install or use a dictograph in

any house, room, apartment, tenement, office, shop,

warehouse, store, mill, barn, stable, or other building,

tent, vessel, railroad car, vehicle, mine or any under-

ground portion thereof, is guilty of a misdemeanor;

provided, that nothing herein shall prevent the use and

installation of dictographs by a regular salaried peace

officer expressly authorized thereto by the head of his

office or department or by a district attorney, when such

use and installation are necessary in the performance

of their duties in detecting crime and in the apprehen-

sion of criminals. (Added by Stats. 1941, ch. 55, See. 1.)

(Emphasis ours.)

The trial court instructed the jury as follows:

‘*You are instructed that it is lawful for any (regu-

lar salaried) peace officer to install and use a dicto-

graph in any house, room or apartment, where

(expressly) authorized by the head of his office or

department, when such use or installation are neces-

sary in the performance of their duties in detecting

crime and in the apprehension of criminals.”

(R. 298; 321, 322).

The United States Supreme Court has declared hereto-

fore that:

‘The security of one’s privacy against arbitrary

intrusion by the police—which is at the core of the

Fourth Amendment—is a basis to a free society. It

is therefore implicit in ‘the concept of ordered lib-

erty’ and as such is enforceable against ‘he States

aa

throughout the Due Process Clause. . . . Accccord-

ingly, we have no hesitation in saying that wer were a

state affirmatively to sanction such police incuricyrsion

into privacy it would run counter to the guaranttanty of

the Fourteenth Amendment.’’

Wolf v. Colorado, 338 U. S. 25;

Stefanelli v. Minard, 96 L. Ed. 99.

ArcuMENT III

Section 647, Subdivision 5 of the Penal Code ide is so

vague and indefinite in its terms so that the prosecusecytion

of your petitioner thereunder constituted a deniapnial to

him of due process of law all as guaranteed to hin him by

the Fourteenth Amendment to the Constitution of 1 of the

United States.

The argument is here made in support of specifica; feation

of error number 4.

Section 647, Subdivision 5, as it pertains to to the

charge against your petitioner reads:

‘Every . . . lewd or dissolute person . . .

. isa

vagrant.”’

These terms are of themselves indefinite and @Nq uncer-

tain and afford no ascertainable standard of guilt. iilt.

The United States Supreme Court has held that a PeT: person,

who has been convicted of the violation of a statute so V8.9 vague

and indefinite in its terms that men of common intelligeni cence

must necessarily guess its meaning, has been denied fod dae

process of law within the meaning of the due process cla

sel

of the Fourteenth Amendment. 7 cue

Connaly v. General Construction Co., 296 U. S. 385

Lanzetta v. New Jersey, 306 U. S. 451;

United States v. Cohen Grocery Co., 255 U. S. 81

Stromberg v. California, 283 U. S. 359 at 369 ;

Herndon v. Lowry, 301 U. S. 242 at 258.

. 385;

; 31;

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24

ARGUMENT IV

The jury instruction defining Section 647 Subdivi-

sion 5 of the Penal Code was erroneous and the giving

of the same resulted in a denial of due process of law

to your petitioner.

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The argument here made is in support of specification

of error number 5.

The trial court gave the following instruction:

wh bids as

‘*You are instructed that Webster’s Unabridged

Dictionary defines dissolute as ‘‘loosed from restraint,

unashamed, lawless, loose in morals and conduct, reck-

lessly abandoned to sensual pleasures, profligate,

wanton, lewd, debauched’’ (R. 293, 319).

The Appellate Department of the Superior Court in its

memorandum opinion declared the dictionary instruction

given was too broad and that a man may be ‘‘unashamed

and still not be guilty of a public offense’’ (R. 359).

The United States Supreme Court has refused to affirm a

conviction under a statute which is itself uncertain when

the court’s interpretation makes it all the more vague and

broadens its scope. The United States Supreme Court has

stated that to enforce such a statute would be to deny the

defendant due process of law because such a statute so in-

terpreted leaves open the widest scope of which no one can

foresee and the result of which no one can foreshadow or

adequately guard against.

Winters v. New York, 333 U.S. 507.

A NDS ETS

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Petitioner calls the attention of the Honorable Court that

there is pending before it now a case involving the consti-

tutionality of California State Penal Code, Section 647,

Subdivision 5. (Edelman v. People of the State of Cali-

fornia.)

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25

Conclusion

It is therefore respectfully submitted that this case is

one calling for the exercise by this Court of its supervisory

powers, by granting a writ of certiorari and thereafter re-

viewing and reversing said decision.

Dated: September 9, 1952.

Respectfully submitted,

Joun WALSH,

Attorney for Petitioner.

(4052)