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The Forbidden Fruit and The Tree of Knowledge, An Inquiry into the Legal History of Marijuana Prohibition

THE FORBIDDEN FRUIT AND THE TREE OF KNOWLEDGE: AN INQUIRY INTO THE LEGAL HISTORY OF AMERICAN MARIJUANA PROHIBITION

Richard J. Bonnie & Charles H. Whitebread, II


IX. MARIJUANA LEGISLATION CLASHES WITH JUDICIAL SKEPTICISM AND EMERGING VALUES - PIECEMEAL JUDICIAL RESPONSE: 1965-1970

The dramatic increase in marijuana use during the latter 1960's and the consequent increase in prosecution1 were matters of high public visibility. Judicial response at both the trial and appellate levels was influenced by a combination of powerful forces, none of which had been present in the preceding years. The 1960's saw a revolution in the law of criminal procedure, and in few areas were police practices more suspect than in the enforcement of the drug laws. The latter part of the decade witnessed widespread dissent against the political and legal systems; this protest milieu gave an added dimension to marijuana use as more and more people smoked, oftentimes overtly, in order to defy a seemingly ignorant law. Faced with this unusual conjunction of widespread political and social eccentricity, the courts-institutional protectors of political deviants-were inevitably pressed into institutional sympathy for social deviants. A third force was the revitalized judicial interest in the value of privacy in a highly automated, technological society; more and more people went to the courts to question longstanding governmental prohibitions against essentially private decisions and acts-homosexuality, abortion, contraception and drugs. Together with the well-publicized medical skepticism about the soundness of the nation's drug laws, particularly those regulating marijuana, these forces moved the courts to scrutinize enforcement practices and consider a new wave of constitutional objections to state and federal marijuana legislation.

A. Multiple Offenses: Untying the Statutory Knots

1. Federal Developments

In the major decision during this period, the United States Supreme Court voided the federal provisions most often employed to prosecute the possessor (buyer) of marijuana. In the first arm of Leary v. United States,2 the Court held that the Fifth Amendment relieves unregistered buyers of any duty to pay the transfer tax and to file the written order form as required by the Marihuana Tax Act.3 The Court reasoned that, since filing such a form would expose a buyer to liability under state law, under the occupational tax provisions of the Tax Act, and perhaps under the marijuana provision of the Import and Export Act,4 the filing provisions violated the fifth amendment guarantees against self-incrimination. On the other hand, the Court held in a later case that the fifth amendment does not relieve the marijuana seller of the duty to confine his sales to transferees who are willing to comply with the order form requirements.5 Similarly, the Eighth Circuit recently held6 that Leary does not compel invalidation of Tax Act section 4755(b), which prohibits the interstate transportation of marijuana, because a conviction under that section is not really a conviction for falling to register and pay the occupational tax and, even if it were, registration under section 4753 is not necessarily incriminating as was the written order form requirement struck down in Leary .7

The second arm of Leary reversed the long line of decisions8 upholding the presumption of knowing concealment of illegal importation arising from possession under section 176a of the Import and Export Act.9 The Court held that, in light of the case with which marijuana was domestically cultivated and the number of users, the presumption of know1edge could not rationally be drawn from possession.10 it could not be said "with substantial assurance that the presumed fact [knowing concealment of illegally imported marijuana] is more likely than not to flow from the proved fact [possession] on which it is made to depend."11 Although there is authority to the contrary,12 the Ninth Circuit has held this part of Leary retroactive, thereby invalidating all prior Section 176a convictions in which the defendant did not admit knowledge and the was instructed as to the applicability of the statutory presumption .13

A serious dispute remains as to what the Government will have to prove in subsequent prosecutions under section 176a. Assuming that the entire provision does not violate the privilege against self-incrimination,14 it is likely that the prosecution will have to prove actual knowledge of illegal importation in the future.15 Since it is highly improbable that such proof will be forthcoming, section 176a has probably been rendered useless as applied to possessors. It should be clear that the entire series of decisions under the Tax Act and section 176a has an air of unreality about them because Congress probably has Article I power directly to prohibit possession and sale of marijuana and has now exercised that power in the Comprehensive Drug Abuse Prevention and Control Act of 1970.16 This new legislation, although stopping short in some respects, discards many of the fictions perpetuated by earlier legislation. The Leary decision was at least partially responsible for forcing Congress to rationalize the federal role in the drug field, particularly with respect to marijuana.

Another manifestation of judicial dissatisfaction with the extreme nature of existing drug legislation is the apparent reversal of the trend of decisions upholding the strict liability of one-time drug offenders, users and addicts for failure to register when leaving the country.17 The Ninth Circuit held the phrase "uses narcotic drugs" unconstitutionally vague.18 Taking a more direct approach, the Second Circuit found knowledge of the registration requirement to be an element of the crime.19 Thus construed, the statute precludes any due process challenge to the sufficiency of the notice.20 Although a self-incrimination issue remains, 21 the Second Circuit's decision removed the most serious defect in the statute, one that had become intolerable as the number of marijuana convictions escalated in the late 1960's.

2. State Developments

The erosion of the archaic federal criminal statutes for marijuana-related offenses has been accompanied by a similar, albeit limited, development on the state level. The major issue in state litigation concerns so-called "drug-proximity" offenses which are generally employed as plea-bargaining tools or to prevent the release of a suspect when evidence was 1 illegally seized or when the evidence is insufficient to secure a conviction under the substantive drug offense. Typical ancillary offenses are loitering in the common areas of a building for the purpose of unlawfully using or possessing any narcotic drug;22 loitering in public by a user, addict or convicted drug offender without lawful employment;23 presence in an establishment where narcotic drugs are dispensed;24 and presence of a user or drug offender in a private place where drugs are kept.25

The decisional trend seems to point to the unconstitutional vagueness of simple loitering and vagrancy statutes.26 Because of the nexus between narcotics and crime, however, the courts are struggling to redefine narcotics-proximity statutes to avoid the vagueness objection.27 It might appear that where "good account" provisions give the arresting police officer too much discretion the statute will fal1.28 On the other hand, courts generally avoid vagueness objections based on lack of notice by reading in knowledge elements wherever neccssary.29 Because of the tenuous relation between marijuana and crime, the courts should construe "narcotics" in such statutes not to include marijuana.

Similar restriction of marijuana-related offenses has been accomplished by holding that charges of possession and sale will not both lie where the only possession is incident to sale,30 and by tightening the requirements of specificity in the indictment regarding the proscribed parts of the plant.31

B. Procedural Objections to Enforcement Practices

The law of criminal procedure underwent a major revolution in the 1960's. The Bill of Rights was applied piece by piece to the states through the fourteenth amendment. The Supreme Court focused its concern on protecting the rights of the criminal defendant. The earlier philosophy had been that, so long as the defendant's rights at trial were guaranteed, the Court should not, and did not need to, intrude into the pretrial stages of the criminal process. For a variety of reasons it became clear in the 1960's that in a system where between 75 and 90 percent of all defendants bargain and enter guilty pleas, rights must be assured well before trial if they are to have any real meaning to the average person caught in the net of the criminal process. Thus, step by step the Court began to regulate police practices-search, arrest and interrogation techniques-and the conduct of the early stages of the criminal process. This substantial change in attitude meant that more marijuana defendants could successfully raise procedural objections.

1. Search and Seizure

The most important development for the marijuana offender has been the close judicial scrutiny of police searches as a result of Supreme Court rulings under the fourth amendment. More stringent standards have been established for the police to obtain search warrants32 and the proper scope of searches incident to a lawful arrest has been narrowed substantially. 33

Although courts have refused to exclude any evidence that was in plain sight when seized, such as a bag of marijuana in a school satchel voluntarily opened by a student,34 or marijuana thrown out of window by a defendant trying to dispose of it,35 they have narrowed the permissible time and area in which a car may be searched .36

Moreover, the difficult standing problem posed by the requirement that one had to admit possession or ownership of the seized property in order successfully to challenge the search was alleviated in cases involving group arrests by permitting all those on the premises to challenge a given search.37

The new requirements for procuring search warrants led to a number of technical defense victories. For example, searches of defendants' residences were successfully challenged in two Montana marijuana cases38 because the warrants were issued by a justice of the peace, rather than by a district judge, as required by the state law. These holdings were premised on the sanctity of private residences, and they suggest a growing reluctance to countenance "reasonable" warrantless searches, especially of the home. Similarly, Maryland struck down the fruits of a search of defendant's guests and their automobiles on the ground that the permissible search was limited to the areas described in the warrant.39 An Illinois court has held that property not included in the warrant must be returned to the defendant.40 This return to a more stringent view of particularity requirements of warrants stands in stark contrast to the willingness of courts to overlook these requirements in the late fifties.41

Likewise, courts now scrutinize more closely police claims of probable cause for expanding the area of the search. A California court held that even though defendant was lawfully arrested, search of his luggage in a friend's apartment was justified neither by the friend's consent nor by the officer's having seen the defendant swallow something.42 The search was especially unjustifiable since the defendant had been arrested in his automobile. In another California case, the presence of peculiar odors did not constitute probable cause for the search of a footlocker.43

An airline had detained the footlocker since it corresponded to a police description. The officers had smelled the marijuana and then searched the footlocker before sending it on its way and tracing it. The California Supreme Court held that the smell alone was not sufficient cause to search without a warrant.

Despite judicial narrowing of the scope of searches with or without a warrant, the easing of the standing requirements, and the closer scrutiny on the probable cause issue, courts continue to permit police to enter dwellings without knocking or by force where circumstances indicate such action is reasonable and necessary. For example, a California court upheld a marijuana search, even though the police entered without knocking, because the police heard people running around inside yelling, "It's the police," and thought they heard a shot fired.44 The court held that the statutory knocking requirement was subject to exception when there was danger of destruction of evidence and danger to the police. Closely related to no-knock entry is forcible entry, upheld in an Illinois case45 where the police broke into the defendant's residence when he did not immediately respond to their knocks. The necessity for forced entry is essentially the same as for unannounced entry, but forced entry adds the danger of causing fright and damage.

Another search area that has not been substantially liberalized is that of the border search. Customs officials have a much more extensive right to search than their police colleagues. Mere suspicion is sufficient to justify a border search.46 Even though the jurisdiction of customs agents ends once entry into the country is completed,, the courts have allowed border guards great discretion in determining what constitutes completed entry. In Thomas v. United States.47 the Fifth Circuit held admissible evidence seized an hour and a half after the appellant had entered the United States because he was only six blocks from the border. Although there is an inevitable problem of how far the jurisdiction of the customs agent extends, Thomas suggests c1early that it is not limited to border crossings.

2. Entrapment

Although the majority opinions in Sorrells v. United States48 and Sherman v. United States,49 remain the leading statements on entrapment, some courts have recently permitted expansion of the defense. In California a defendant may plead not guilty and still raise the entrapment defense in some cases. The court in People v. Perez stated:

To compel a defendant to admit his guilt as a condition of invoking the defense of entrapment would compel him to relieve the prosecution of its burden of proving his guilt beyond a reasonable doubt at the risk of not being able to meet his burden of proving entrapment.50

The defendant must, however, still raise the defense at trial to be determined as a matter of fact by the jury.51 There is no right to raise the defense in a pretrial motion to suppress the evidence.52 Most courts continue to focus on the moral culpability of the accused53 in determining whether or not entrapment has been successfully shown. Recent Arkansas,54 and Nevada55 cases, however, suggest that the courts are increasingly concerned about the conduct of law enforcement agents, especially in marijuana cases.

3. Other Prosecution Practices

Several major abuses, although judicially recognized, remain largely uncorrected. Long delay between offense and arrest is common in narcotics offenses because the police desire to expose the full extent of distribution and to maintain a cover for the undercover agent as long as possible. Yet any substantial delay prejudices the defendant since the prosecution continues to gather evidence while the defendant may forget exact circumstances and possibly exculpating facts. Judicial response has been inconsistent, focusing primarily on the purposefulness of the delay.56 In light of the recent rejuvenation of the speedy trial requirement by the Supreme Court,57 there is some hope that this abuse may be corrected.

A more serious abuse with which state and federal prosecutors have been charged is politically-motivated discretionary enforcement.58 Although the courts can do little to remedy this state of affairs, it forms the basis for one of our basic contentions: The political-social overtones of the marijuana problem may inhibit a rational political and prosecutorial response and at the same time may provoke a protective judicial response. One judge, particularly expert with regard to contemporary drug problems acknowledged the partial truth of the charges of political prosecution against Hippies, long-hairs and draft-card burning college students.59 To the extent that other trial and appellate Judges recognize these prosecutorial tendencies, we can expect some judicial compensation either in fact-finding, in sentencing, or in response to substantive challenges to the law. It is our contention, of course, that such judicial reaction has already begun.

C. Sufficiency of the Evidence

The ease of identifying marijuana in conjunction with the use of uncorroborated testimony and circumstantial evidence continues to require of the prosecution only a very low burden of proof. Nevertheless, appellate decisions are gradually beginning to tighten these requirements, and active judicial hostility at trial has all but disappeared.

Although the use of uncorroborated testimony to convict continues to be upheld by the courts,60 an Illinois appellate court has reversed a conviction because of the behavior of the testifying officer.61 Noting that the officer had repeatedly pressured the defendant to become an informer, the court held that the uncorroborated testimony of this officer was not sufficient to support a conviction. The court did not make clear whether it exercised a weight of the evidence review of the trial judge's fact-finding, or whether it applied an exclusionary evidence rule pursuant to its inherent powers over the administration of criminal justice. Whatever the case, judicial perspective in the clash between marijuana defendant and police officer has clearly shifted.

The amount of marijuana required to uphold a conviction is undergoing substantial change. The California Supreme Court held in People, v. Leal62 that to be sufficient for conviction, the amount of narcotics must be enough for sale or consumption, the rule generally applied where the statute does not specify a minimum quantity.63 In Eckroth v. State64 a Florida court ruled that the taking of a drug from a passing pipe is not sufficient to constitute possession where the defendant did not own the pipe, the drug or the premises. Similarly, in a case that received national publicity,65 the Minnesota Supreme Court field that if the state defines marijuana as a narcotic, it cannot punish possession of what could be native cannabis in amounts too scanty to produce a "narcotic" effect. Accordingly, exiguous traces of the drug found in the crevices of defendant's brief case left in his mistress' car did not constitute an amount sufficient for conviction .66

Other problems remain unsolved. Circumstantial evidence continues to link defendants to seized marijuana. Constructive possession was found where the defendant's daughter was the actual possessor67 and the fact that marijuana was found where an informer said she had seen defendant smoking it the previous day was sufficient to support the defendant's conviction.68 There is a split as to whether a conviction can be upheld where the defendant gratuitously brings the buyer and seller together. Massachusetts upheld the conviction for possession where the defendant's only contact with the marijuana was passing it to the state's agent,69 ruling that the facilitation of the sale added enough to the act of passing to allow the court to find possession. In a similar case, however, a New York court held that there was not present the required involvement or concert of action to uphold a conviction for sale.70 Nevertheless, courts have refused conviction on numerous occasions in which the defendant was not linked exclusively with the marijuana that was found71 and have generally required an outside linking factor before upholding the possession.72 However, the element that can tip the scales in favor of conviction is often unrelated to the possible possession of the marijuana. For example, a California court73 upheld the finding of possession of marijuana discovered along with a purse the defendants had stolen. The defendants contended that the marijuana was not theirs and must have been in the purse when stolen. That the defendants were thieves probably played more heavily in the conviction than any evidence of their connection with marijuana.

Where marijuana is found on the premises of the individual, possession is presumed, although the courts have read in a defense of ignorance of the presence of the marijuana.74 Nevertheless, in a New Hampshire case75 the court upheld a possession conviction premised on the defendant's knowledge of presence of the drug on the premises even though the court apparently believed the defendant's story that it belonged to a third party. Ordinarily there is direct corroborating evidence to indicate the defendant's knowledge.76

Along with the gradual thaw on these points in state courts, the late sixties witnessed a total absence of the outrageous judicial participation in inflammatory statements about the dangers of the drug and its users which we saw was typical of the late fifties. To the contrary, the appellate opinions, at least, are replete with skeptical references to the inclusion of marijuana in the narcotics classification .77

D. Sanction

Nowhere has judicial disenchantment with the drug laws, especially marijuana, been greater than in the area of punishment. Preference for civil treatment of drug abuse,78 disgust with severe mandatory sentencing that deprives the Judiciary of its traditional function of weighing the culpability of the individual offender, 79 and skepticism about a statutory scheme which catches the user or small scale distributor and misses the major trafficker80 have all found their way into judicial opinions.

This dissatisfaction with legislative inaction in the area of de-escalating punishment has already begun to provoke remedial81 judicial action. In a landmark decision82 receiving national attention,83 the Supreme Court of New Jersey recently held that any prison sentence imposed for first-offense possession of marijuana for personal use "should be suspended,"84 While the court based its holding on the judiciary's statutory authority to suspend sentences in "the best interests of the public as well as of the defendant,"85 and on the appellate court's power to review for abuse of discretion trial court sentencing decisions, it appears that the true locus of the opinion is the Eighth Amendment. That is, the court really determined that any prison sentence for first-offense possession of marijuana for personal use is unreasonably excessive. Accordingly, the decision will be discussed in more detail in the following section.86


Footnotes:

1 See pp. 1096-1 101 supra. See also People v. Patton, 264 Cal. App. 2d 637, 70 Cal. Rpt. 484 (Dist. Ct. App. 1968), where the arresting officer testified that he had made about 1,000 marijuana arrests.

2 395 U.S. 6 (1969).

3 Although Leary involved only the concealment and transportation provision, 26 U.S.C. 4744 (a) (2) (1964), the Eighth Circuit has held, correctly, that Leary also covers the acquiring provision, 4744(a) (1), "since a person obviously would have to acquire the marijuana to knowingly transport or conceal it." United States v. Young, 422 F.2d 302, 304 (8th Cir.), cert. denied, 398 U.S. 914 (1970).

4 Because the "danger of incrimination under state law" was "so plain," the Court did not pursue the additional question of a buyer's exposure to liability under the Import and Export Act. 395 U.S. at 16 n.14.

5 Minor vs. United States, 396 U.S. 87 (1969)

6 United States v. Young, 422 F.2d, 302 (8th Cir.) , cert. Denied, 398 U.S. 914 (970)

7 "Although we need not reach the question, we feel that the Fifth Amendment is not violated by the insubstantial hazards of incrimination posed by section 4753. Id. at 306

8 See p. 1086, supra

9 Anticipating the Leary decision on the 176a presumption was United States v. Adams, 293 F. Supp. 776 (S.D.N.Y. 1968).

10 395 U.S. at 52 53. Having found the "knowledge" presumption unconstitutional, the court avoided consideration of the "illegal importation" presumption. Id at 38. The knowledge presumption has also be held invalid as applied to hashish. United States v. Maestri, 424 F.2d 1066 (9th Cir. 1970) ; cf. United States v. Cepelis, 426 F.2d 134 (9th Cir. 1970) (remanded for factual determination as to whether Leary applies to hashish.)

In Turner v. United States, 396 U.S. 398 (1970), the Court upheld the presumption in 21 U.S.C. 174 (1964) (direct ancestor of 176a as applied to heroin but declared it irrational as applied to cocaine. It has been held that Turner is retroactive, United States v. Vallejo, 312 F. Supp. 244 (S.D.N.Y. 1970).

11 395 U.S. at 30.

12 Rivera-Vargas v. United States, 307 F. Supp. 1075 (D.P.R. 1969).

13 United States v. Scott, 425 F.2d 55 (9th Cit. 1970). We think the Ninth Circuit is right, at least with respect to convictions secured after marijuana achieved high public visibility in the 1960's. Since the number of people still incarcerated for earlier convictions is minimal, complete retroactive effect is in order. Essential to the Leary decision was a determination that the presumption was factually unsupportable; it therefore constituted a material flaw in the fact-finding process and seriously impaired the right to jury trial.

14 Absent the written order form requirement of the Marihuana Tax Act, we do not see how prosecution under 176a involves the fifth amendment at all. Neither did the Ninth Circuit. Id. at 61.

15 See United States v. Martinez, 425 F.2d 1300 (9th Cit. 1970); McClain v. United States, 417 F.2d 489 (9th Cit. 1969). A mere inference of importation is clearly not enough to sustain a conviction since it would nullify Leary. Cf. United States v. Ramos, 282 F. Supp. 354 (S.D.N.Y. 1968) (where Government failed to prove possession beyond reasonable doubt, court could not infer knowledge of importation). It is difficult to see how the Government could raise an inference of knowledge without proving actual knowledge. If, however, such can be done, it is clear that the defendant has a right to prove that the marijuana was not imported. United States v. Espinoza, 406 F.2d 733 (2d Cir.), cert. denied, 395 U,S. 908 (1969) (retrial ordered for failure of trial judge to allow defendant to prove that marijuana came from California),

16 Pub. L. No. 91-513 (Oct. 27, 1970). See also Leary v. United States, 395 U.S. 6, 54 (1969) ("We are constrained to add that nothing in what we hold today implies any constitutional disability in Congress to deal with the marijuana traffic by other means").

17 See P. 1085 supra.

18 Weissman v. United States, 373 F.2d 799 (9th Cir. 1967). Struggling to confine its holding, the court distinguished an apparently contradictory case, United States v. Eramdjian, 155 F. Supp. 914 (S.D. Cal. 1957), on the ground that it involved "addiction" rather than use of narcotic drugs.

19 United States v. Mancuso, 420 F.2d 556 (2d Cir. 1970).

20 See Lambert v. California, 355 U.S. 225 (1957) (application of city ordinance requiring convicted felons to register within five days after arrival in city where there is no actual notice or knowledge of ordinance is unconstitutional). 21 The Mancuso court did not discuss the issue.

22 N.Y. PENAL LAW 1533 (5) (McKinney 1967).

23 D.C.CODE ANN. 22-3302 (1967).

24 Id. 22-1515(a).

25 Id. 3 3 -416 (a).

26 e.g.. Wheeler v. Goodman, 306 F. Supp. 58 (W.D.N.C. 1969), appeal docketed, 38 U.S.L.W. 3409 (U.S. Apr. 21, 1970) (No. 1273, 1969 Term; renumbered No. 102, 1970 Term); Lazarus v. Faircloth, 301 F. Supp. 266 (S.D. Fla.) appeal docketed, 38 U.S.L.W. 3225 (U.S. Dec. 16, 1969) (No. 630, 1969 Term; renumbered No. 43, 1970 Term; Broughton v. Brewer, 298 F. Supp. 260 (S.D. Ala. 1969).

27 In People v. Pagnotta, 25 N.Y.2d 333, 253 N.E.2d 202, 305 N.YS.2d 484 (1969), the New York Court of Appeals upheld a statute making it illegal to loiter about any "stairway, staircase, hall, roof, elevator, cellar, courtyard, or any passageway of a building for the purpose of unlawfully using or possessing any narcotic drug." The court distinguished the ordinary vagrancy and loitering cases on the ground that the conduct punished in the narcotics vagrancy statute is directly related to the commission of crime against others:

[P] rotection of innocent citizens from drug users is a very crucial problem. As has recently been pointed out by several newspaper articles, in some of our poorer urban areas where drug use is high, innocent citizens are often beaten, robbed and even murdered by drug addicts .... It is completely reasonable and proper for the Legislature to protect these citizens from accidentally stumbling into the midst of such miscreants in the common areas of buildings.

Id. at 338, 253 N.E.2d at 206, 305 N.Y.S.2d at 489.

28 Ricks v. District of Columbia, 414 F.2d 1097, 1104-05 (D.C. Cit. 1968). But cf. United States v. McClough, 263 A.2d 48 (D.C. Ct. App. 1970) (upholding statute prohibiting presence in an establishment where defendant knows narcotics are being dispensed).

29 e.g., United Stares v. McClough, 263 A.2d 48 (D.C. Ct. App. 1970) (reading scienter provision into statute prohibiting prior drug users or offenders from being "found in any place . . . building, structure . . . in which any illicit narcotic drugs are kept"); cf. People v, Brim, 257 Cal. App. 2d 839, 65 Cal. Rptr. 265 (Dist. Ct. App. 1968) (interpreting statute outlawing knowingly being in a place where narcotics are being used as charging defendant with intentional involvement with the unlawful use of marijuana).

30 State v. Duplain, 102 Ariz. 100, 425 P.2d 570 (1967); People v. Theobald, 231 Cal. App. 2d 351, 41 Cal. Rptr. 758 (Dist. Ct. App. 1964).

31 See, e.g., State v. Haddock, 101 Ariz. 240, 418 P.2d 577 (1966) (seeds contain no cannibin, therefore no crime charged); State v. Curry, 97 Ariz. 191, 398 P.2d 899 (1965) (marijuana refers to the p2its of the plant containing cannabin). Contra, State v. Ringo, 5 Conn. Cir. 134, 246 A.2d 208 (Cir. Ct. 1968) (possession of seed, residue in pipes and a small package of marijuana); Commonwealth v. Cunningham, 35 Pa. D. & C.2d 527 (0. & T. Allegheny 1964) (possession of marijuana seeds); cf. State v. Everidge, 77 N.M. 505, 424 P.2d 787 (1967) (defendant required to raise defense that marijuana possessed was within statutory exception); State v. Mudge, 69 Wash. 2d 861, 420 P.2d 863 (1966) (same).

32 Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964).

33 Chimel v. California, 395 U.S. 752 (1969) (search incident to a lawful arrest limited to an area within immediate control of the suspect). See also Terry v. Ohio, 392 U.S. 1 (1968).

34 People v. Bloom, 270 Cal. App. 2d 731, 76 Cal. Rptr. 137 (Dist. Ct. App. 1969).

35 State NT. Garcia, 76 N.M. 171, 413 P.2d 210 (1966).

36 Preston v. United States, 376 U.S. 364 (1964). See also Cooper v. California, 386 U.S. 58 (1967). The holdings in both these cases are probably limited by Chimel.

37 Jones N7. United States, 362 U.S. 257 (1960).

38 State v. Kurland, 151 Mont. 569, 445 P.2d 570 (1968); State v. Langan, 151 Mont. 558, 445 P.2d 565 (1968).

39 Haley v. State, 7 Md. App. 18, 253 A.2d 424 (1969).

40 People v. Hartfield, 94 111. App. 2d 421, 237 N.E.2d 193 (1968).

41 See pp. 1089-91 supra.

42 People v. Cruz, 61 Cal. 2d 861, 395 P.2d 889, 40 Cal. Rptr. 841 (1964); accord, People v. Patton, 264 Cal. App. 2d 637, 70 Cal. Rptr. 484 (Dist. Ct. App. 1968). In Cruz the court stated that it was reasonable for the officers to try to dislodge the suspected marijuana from the defendant's mouth.

43 People v. McGrew, 103 Cal. 3d 404, 462 P.2d 1, 82 Cal. Rptr. 47 3 ( 1 969), relying on People v. Marshall, 69 Cal. 2d 51, 412 11.2d 665, 69 Cal. Rptr. 585 (1968) (" 'In plain smell,' therefore, is plainly not the equivalent of 'in plain view'"

44 People V. Clay, 273 Cal. App. 2d 279, 78 Cal. Rptr. 56 (Dist. Ct. App. 1969)

45) People v. Hartfield, 94 111. App. 2d 421, 237 N.F.2d 193 (1968).

46 United States v. Glaziou, 402 F.2d 8 (2d Cir. 1968), cert. denicd, 393 U.S.1121 (1969); Henderson v. United States, 390 F.2d 805 (9th Cir. 1967).

47 372 F.2d 252 (5th Cir. 1967). The customs agents had searched the defendants belongings at the time he had entered the country arid had not discovered the marihuana and heroin he possessed. They came into town and searched the defendant when they were notified by an informer that he was carrying the contraband.

48 287 U.S. 435 (1952)

49 356 U.S.369 (1958)

6062 Cal. 2d 769, 776, 401 P.2d 934, 938, 44 Cal. Rptr. 326, 330 (1965). The decision overturned a long series of precedents. That all justices concurred is indicative of the sentiment for change. The court required the prosecution to disclose the identity of the informant because he was essential to the defenses of entrapment and lack of knowledge. The decision was immediately implemented in People v. Marsden, 234 Cal. App. 2d 796, 44 Cal. Rptr. 728 (Dist. Ct. App. 1965). There, defendant was repeatedly requested to furnish marijuana to a government agent and finally purchased and gave the agent one marijuana cigarette. The court noted that the case was close to entrapment as a matter of law.

51 People v. Oatis, 264 Cal. App. 2d 324, 70 Cal. Rptr. 524 (Dist. Ct. App. 1968), cert. denied, 393 U.S. 1108 (1969).

52 State v. Folsom, 463 P.2d 381 (Ore. 1970).

53 Commonwealth v. Harvard, 253 N.E.2d 346 (Mass. 1969); Glosen v. Sheriff, 451 P.2d 841 (Nev. 1969).

54 Peters v. State, 450 S.W.2d 276 (Ark. 1970). Here the defendant gave some marijuana free of charge to the agent after repeated requests. The marijuana had been left in the defendant's shop by others. In remanding the case for consideration by the jury whether entrapment existed the court stated:

Perhaps, neither the persistent solicitation, the use of an alias, the misrepresentation of the purposes for which [the agent] wanted to acquire the marijuana nor the use of friends of appellant for an entree, standing alone, would have been sufficient to raise a fact question as to entrapment, but when taken together along with the total lack of evidence that [the defendant] had possessed or sold marijuana before, there was such an issue. Id. at 278.

55 Froggatt v. State, 467 P.2d 1011 (Nev. 1970) (reversed for failure to give entrapment
instruction where policeman placed marijuana in defendant's car and then Defendant sold it to another officer).

56 Compare Jordan v. United States, 416 F.2d 338 (9th Cir. 1969), cert. denied, 397 U.S. 920 (1970) (since three-month delay was not purposeful, defendant must show actual prejudice), with Ross v. United States, 349 F.2d 210 (D.C. Cir. 1965) (charges dismissed since seven-month delay found purposeful).

57 Smith v. Hooey 393 U.S. 374 (1969).

58 E.g., J. KAPLAN, MARIJUANA THE, NEW PROHIBITION 40-42 (1970).

59 Oliver, Assessment of Current Legal Practices from the Viewpoint of the Courts, in DRUGS AND Youth 229 (J. Wittenborn ed. 1969). Judge Oliver tried to minimize the seriousness of the problem, However:

I think that as judge I must be interested in what might appear to be a pattern of discriminatory law enforcement, but I . . . consider much of this talk must be viewed with the same critical eye which most other talk about drug abuse must be viewed.

Id. at 233.

60 See, e.g., Winfield v. State, 248 Ind. 95, 223 N.E.2d 576 (1967).

61 People v. Quintana, 91 Ill. App. 2d 95, 234 N.E.2d 406 (1968). The court was greatly displeased with the continuing misbehavior of the officer: "[The 5-8 previous arrests and shakedowns] were a high-handed display of police power which completely disregarded the defendant's constitutional rights." Id. at 98, 234 N.F.2d at 408.

62 64 Cal. 2d 504, 413 P.2d 665, 50 Cal. Rptr. 777 (1966) (heroin).

63 People v. Villalobos, 245 Cal, App. 2d 561, 54 Cal. Rptr. 60 (Dist. Ct. App. 1966) (50 milligrams insufficient); see Tuttle v. State, 410 S.W.2d 780 (Tex. Crim. App. 1967) (63 milligrams sufficient, enough to make a very small cigarette); People v. Hokuf, 245 Cal. App. 2d 394, 53 Cal. Rptr. 828 (Dist. Ct. App. 1966) (reversible error for the court not to instruct the jury that fragments of marijuana cannot support conviction). But see Franklin v. State, 8 Ind. App. 134, 258 A.2d 767 (1969) (heroin), in which the court upheld a conviction for possession where the defendant went to the hospital with an overdose. Although recognizing that once the drug is inside the body there is no possession because there is no control, the court felt that prior possession and self-administration could be inferred. The decision should do much to discourage addicts from receiving any medical treatment that might expose them to criminal penalties.

64 227 So. 2d 313 (Fla. Dist. Ct. App. 1969).

65 See P. 1099 & note 14 supra.

66 State v. Resnick, 177 NW.2d 418 (Minn. 1970).

67 People v. Thomas, 76 Ill. App. 2d 42, 221 NE. 2d. 800 (1966).

68 State v. Mantell, 71 Wash. 2d 768, 430 P.2d 980 (1967).

69 Commonwealth v. Harvard, 253 N.F.2d 346 (Mass. 1969).

70 People v. Hingerton, 27 App. Div. 2d 754, 277 N.Y.S.2d 754 (1967).

71 See, e.g., State v. Oare, 249 Ore. 597, 439 P.2d 885 (1968) (one marijuana cigarette found in bathroom with two people, Home owner convicted); People v. Van Syoc, 269 Cal. App. 2d 370, 75 Cal. Rptr. 490 (Dist. Ct. App. 1969) (marijuana found on righthand side of the dashboard in defendant's car while parked in public lot), People v. Evans, 72 Ill. App. 2d 146, 218 N.E.2d 781 (1966) (marijuana found under bar where defendant had been sitting).

72 State v. Faircloth, 181 Neb. 333, 148 NW.2d 187 (1967) (defendant had dufflebag
full of marijuana between his legs in automobile); People v. Blunt, 241 Cal. App. -Id 200, 50 Cal. Rptr. 440 (Dist. Ct. App. 1966) (defendant only one who had sat in back of police car where Marijuana found).

73 People v. Irvin, 264 Cal. App. 2d 747, 70 Cal. Rptr. 892 (Dist. Ct. App. 1968).

74 See Commonwealth v. Buckley, 354 Mass. 508, 238 N.F.2d 335 (1968); People v. Mitchell, 51 Misc. 2d 82, 272 N.Y.S.2d 523 (Sup. Ct. 1967). Contra. State v. Givens, 74 Wash. 2d 48, 442 P.2d 628 (1968).

75 State v. Colcord, 109 N.H. 231, 248 A.2d 80 (1968).

76 The evidence of fragments of marijuana on the defendant often provides this evidence, See, e.g., People v. Slade, 264 Cal. App. 2d 188, 70 Cal. Rptr. 321 (Dist. Ct. App. 1968); People v. Haynes, 253 Cal. App. 2d 1060, 61 Cal. Rptr. 859 (Dist. Ct. App. 1967), cert. denied, 392 U.S. 914 (1968); People v. Hurta, 238 Cal. App. 2d 162, 47 Cal. Rptr. 580 (Dist. Ct. App. 1965).

77 See 1131-32 infra.

78 E.g., Oliver, supra note W.

79 See, e.g., United Sates v. Kleinhalzer, 306 F. Supp. 311 (E.D.N.Y. 1969) (Weinstein, J.); Oliver, supra note 59, at 230:

In most other areas of the law, however, legislatures have freely granted judges the power and discretion within quite flexible limitations, to determine appropriate sentences for all particular defendants before them that may or may not, dependent upon the particular case, include commitment to a penal institution. . . .

In the field of drug abuse, quite contrary to that experience, mandatory prison sentences apparently reflect a legislative conviction that all drug offenders are so alike that sending all to prison is, in fact, a real solution to what must have been viewed as a relatively simple problem. They also seem to reflect a certainty and righteousness that can hardly be said to be justified by our present scientific knowledge.

80 For example, in Aguilar v. United States, 363 F. 2d 379 (9th Cir. 1966), the court affirming the smuggling conviction of a Mexican mechanic driving a car containing marijuana back to the United States, noted:

Here was a young man with a previous clean record, and there was no indication he was a user of narcotics or inside a narcotics ring. Apparently he was a victim of his personal economics. When the law gets no closer than this to the real rascal, one must wonder about the policy of it, although it be beyond our function.

Id. at 381. See also Oliver, supra note 59, at 233

81 What Justice Jackson said about adjudicative mood when the death penalty hangs in the balance is equally appropriate with regard to harsh marijuana penalties:

When the penalty is death, we, like state judges, are tempted to strain the evidence and even, in close cases, the law in order to give a doubtfully condemned man another chance.

Stein v. New York, 346 U.S. 156, 196 (1953)

82 State v. Ward, No. A-9 (N.J. Oct. 26, 1970)

83 N.Y. Times, Oct. 27. 1970, at 1, Col. 4

84 State v. Ward, No. A-9 (N.J. Oct. 26, 1970)

85 N.J. Stat. Ann. Section 2a:168-1 (1969)

86 See pp. 1138-39 infra.


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