# Petition for a Writ of Certiorari — Dragna v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1458%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1953 - **Citation:** 344 U.S. 921 ## Text 7 iM Sy: fod ae Se . bak . Mss oe ~~ Si. ae y, «hed sae ie ich EG SG CEM, fk PA a8 se he 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 % LOOM Ane. ese 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 ote 6 BIRO ADA TAD ADC Cee DARREN AURIS 6 OTR BS REP RA TONNE Os a Y. ¢ 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. pclae ae NiS ATs is eusteict Seiehe ateaeiaeeeein (ls OMe 0 WO one Mes 2 HIT AD tare aS al Ate hah lat A be Des eteasctacstisisics dics 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; eae ARIE IO A eI IRN MOUS ONT SE? AIM ORS TR E n DBR EARNED CBIR AN BORNE IR ARR EET SO eo RE A | 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. » { Pe | 3 a i x > 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 Vk PERS NG cst ov mgt wy 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.) jichié SW RR ce Se airy CP Bane a 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1458%3A1. Public record. Not legal advice.