IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

PEOPLE OF THE STATE OF CALIFORNIA, vs. Plaintiff/Respondent, MARLON JULIUS KING, et al., Defendants/Petitioners. Supreme Court No. S044061 [First District Court of Appeal No. A060701; Contra Costa County No. 922276-1] APPLICATION OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE TO APPEAR AS AMICUS CURIAE AND AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONERS JOHN T. PHILIPSBORN, ESQ. State Bar No. 83944 1231 Market Street, Penthouse San Francisco, CA 94103 Tel.: (415 864-3125 Appearing as Attorney for Amicus Curiae CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE

TABLE OF CONTENTS Page APPLICATION FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE 1 1. Description of Amicus Curiae 1 2. Interest of Amicus Curiae CACJ 2 CONCLUSION 3 BRIEF OF AMICUS CURIAE CACJ IN SUPPORT OF PETITIONERS 4 CONTENTIONS: I. PETITIONER IS CORRECT THAT THE PRETEXTUAL USE OF POLICE POWER MAY VIOLATE THE FOURTH AMENDMENT 5 II. USE OF THE MODIFIED OBJECTIVE TEST MAKES SENSE 7 CONCLUSION 9 i

TABLE OF AUTHORITIES Cases Page Brown v. Texas (1979 443 U.S. 47 2,5 Colorado v. Bannister (1980 449 U.S. 1 6,7 Delaware v. Prouse (1979 440 U.S. 648 5 In re Lance W. (1985 37 Cal.3d 873 4 Jones v. United States (1958 357 U.S. 493 5-6 Maryland v. Macon (1985 472 U.S. 463 8 Pennsylvania v. Mimms (1977 434 U.S. 106 7 Scott v. United States (1978 436 U.S. 128 8 Terry v. Ohio (1968 392 U.S. 1 5 Texas v. Brown (1983 460 U.S. 730, 103 S.Ct. 1535 6 United States v. Brignoni-Ponce (1975 422 U.S. 873 5 United States v. Cannon (9th Cir. 1994 29 F.3d 472 8 United States v. Robinson (1973 414 U.S. 218 7,8 Constitutions Texts, Statutes, and Authorities United States Constitution Fourth Amendment 2,4,5,7,9 ii

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA 1

PEOPLE OF THE STATE OF CALIFORNIA, vs. Plaintiff/Respondent, MARLON JULIUS KING, et al., Defendants/Petitioners. Supreme Court No. S044061 [First District Court of Appeal No. A060701; Contra Costa County No. 922276-1] APPLICATION FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE 1. Description of Amicus Curiae California Attorneys for Criminal Justice (CACJ is a nonprofit California corporation. According to Article IV of its by-laws, CACJ was formed to achieve certain objectives including "to protect and insure by rule of law those individual rights guaranteed by the California and Federal Constitutions, and to resist all efforts made to curtail such rights." In addition, the organization has as a purpose to engage in activities which will advance and promote "justice and the common good of the citizens of the United States." (Article IV, subparagraphs A and C, by-laws of CACJ. CACJ is administered by a Board of Governors, made up of criminal defense lawyers practicing within the state of California. The organization has approximately 2,700 dues-paying members who are primarily criminal defense lawyers practicing before federal and state courts. These lawyers are employed both in the public and private sectors, and are distributed around the state. 2. Interest of Amicus Curiae CACJ As Petitioners frame the issue presented to the Court, it is "what should be the applicable standard for the determination of whether or not a stop/detention is pretextual, and thus unconstitutional?" (Petitioner's brief on the merits, p. 1. CACJ requests permission to appear to support Petitioner in his argument that the Court of Appeal for the First Appellate District was wrong in defining the pretext doctrine as a "vestigial organ in the body of Fourth Amendment analysis." (Slip opinion, at p. 11. As the United States Supreme Court has pointed out part of the very reason for the existence of the Fourth Amendment was to provide protection for the 2

citizenry against standardless and unconstrained exercises of discretion by police. (See Brown v. Texas (1979 443 U.S. 47, 52. Thus, while on its face this case may appear to present grounds for a relatively "routine" decision on a search and seizure issue, as decided by the Court of Appeal, it clearly does not. A pretextual use of police powers clearly can violate the Fourth Amendment, as Petitioner well points out. CONCLUSION For the reasons stated here, CACJ respectfully moves this Court for permission to appear as amicus curiae on behalf of Petitioner on the issue of the continued necessity to evaluate the reason, or pretext, for the initiation of police action leading to a search and seizure. Dated: July, 1995 Respectfully submitted, JOHN T. PHILIPSBORN Co-Chair, Amicus Committee State Bar No. 83944 CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE 3

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA 4

PEOPLE OF THE STATE OF CALIFORNIA, vs. Plaintiff/Respondent, MARLON JULIUS KING, et al., Defendants/Petitioners. Supreme Court No. S044061 [First District Court of Appeal No. A060701; Contra Costa County No. 922276-1] BRIEF OF AMICUS CURIAE CACJ IN SUPPORT OF PETITIONERS TO: THE HONORABLE MALCOLM LUCAS, CHIEF JUSTICE AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA; California Attorneys for Criminal Justice appear to support arguments urged by Petitioners in this action, and specifically to argue that contrary to the conclusion of the Court of Appeal, the need to evaluate police pretexts to stop and search has not abated. As Petitioner has aptly demonstrated, if police officers use a pretext rather than true reasonable suspicion, or probable cause, to stop, detain, arrest and search then there must be a careful judicial analysis of the law enforcement action. To intimate that the need to analyze the pretextual use of police powers is not necessary is to misinterpret the Fourth Amendment, the dictates of which are applicable to any analysis of the issues presented in this case. (See In re Lance W. (1985 37 Cal.3d 873, 896. CONTENTIONS I. PETITIONER IS CORRECT THAT THE PRETEXTUAL USE OF POLICE POWER MAY VIOLATE THE FOURTH AMENDMENT. Even a modest student of the Fourth Amendment would be aware that much of the discussion surrounding it concerns the balance between a generalized view of what is in the public interest as against the individual's right to personal security, free from arbitrary or petty interference by law enforcement officers. (See United States v. Brignoni-Ponce (1975 422 U.S. 873, 878. Thus, the usual point of departure for the analysis of any search and seizure issue is an 5

assessment of "...the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." ( Terry v. Ohio (1968 392 U.S. 1, 19. In Brown v. Texas, supra, the majority noted the concern that the Fourth Amendment be interpreted "...to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." ( Brown v. Texas, supra, 443 U.S. at 51, relying in part on Delaware v. Prouse (1979 440 U.S. 648, 654-55. As Petitioner argues, it cannot be doubted that historically, and currently, the United States Supreme Court has shown concerns about the use of a pretext by law enforcement officers as justification for a search. This was true in Jones v. United States (1958 357 U.S. 493, a case in which the United States Supreme Court found that while officers had justified a search by claiming that it was incident to arrest "the testimony of the federal officers makes clear beyond dispute that their purpose in entering was to search for distilling equipment, and not to arrest [the suspect]. [footnotes omitted]." ( Id., at 500-01. Concerns about pretext searches were also described in Texas v. Brown (1983 460 U.S. 730, 103 S.Ct. 1535, where, in the plurality opinion, the court discussed that to justify the finding of evidence in plain view, an officer must come upon the evidence inadvertently, and not rely "...on the plain view doctrine only as a pretext." (Id., at 1541-43 -- emphasis supplied. That these concerns persist in automobile search cases cannot be doubted. For example, in Colorado v. Bannister (1980 449 U.S. 1 [per curiam], the court considered a car stop. There, a 1967 Pontiac had been observed speeding by a police officer. He lost sight of the auto, but received a radio report that there had been a theft of auto parts in the area in which he was patrolling. Specific items were described, along with two suspects. The officer then spotted the speeding automobile again, and pulled it over to issue a citation. During the stop, he observed some of the stolen parts in plain view. ( Id., at 2-4. The court found that under the circumstances there was probable cause to arrest and to seize the incriminating evidence without a warrant. But the court also 6

specifically noted that "there was no evidence whatsoever that the officer's presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants [of the vehicle]." (Id., at 4, fn. 4. In Pennsylvania v. Mimms (1977 434 U.S. 106 [per curiam], the court also reviewed a car stop, this one based on expired tags, which led an officer to stop the vehicle, order out the driver, leading to a patdown which produced the seizure of a revolver. In its brief opinion, the court specifically reflected on the officer's purpose (which was specifically to issue a traffic citation, as well as on his practice of ordering all drivers out of their vehicle whenever they have been stopped for a traffic violation. ( Id., at 110-11. The court found no allegations of a pretext, which, as Justice Powell noted in his concurring opinion in United States v. Robinson (1973 414 U.S. 218, 238, fn. 2, would have added another question to the analysis of the issues presented. Thus, there is little doubt but that Petitioner is right. The Fourth Amendment requires analysis of whether a pretext is being offered to justify a detention, car stop or arrest. II. USE OF THE MODIFIED OBJECTIVE TEST MAKES SENSE. As Petitioner points out, the recognition that there is a need to analyze pretext stops carries with it the related task of defining a test applicable to the review of the facts in a given case. Petitioner urges what CACJ believes is essentially the continued use of a so-called 'modified objective test' for the purpose of evaluating whether or not a stop was pretextual. (Petitioner's brief on the merits, pps. 18-27. Once it has been established that the prima facie showing of a pretext stop has been made, the essence of this test is to analyze whether under the facts "...a reasonable police officer would have stopped the defendant for the traffic violation, absent his unrelated suspicions..." ( United States v. Cannon (9th Cir. 1994 29 F.3d 472, 476, quoted in Petitioner's brief at pps. 20-21. This test appears to be in line with the United States Supreme Court's tradition of applying an objective assessment to an officer's actions in view of the facts and circumstances confronting the officer at the time that the 7

exercise of police discretion took place. (See Scott v. United States (1978 436 U.S. 128, 137; accord, Maryland v. Macon (1985 472 U.S. 463, 470-71; see also United States v. Robinson, supra, 414 U.S. 218. CONCLUSION The Court of Appeal's casual treatment of a complex area of Fourth Amendment law skewed its analysis of the facts presented here. Petitioner is right. This Court should reaffirm the need to analyze pretext search problems, and should use the test urged on it by Petitioner. Dated: Respectfully submitted, JOHN T. PHILIPSBORN Co-Chair, Amicus Committee and Attorney for CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE 8

PROOF OF SERVICE BY MAIL I, Colette Jappy, declare: That I am over the age of 18, employed in the County of San Francisco, California, and not a party to the within action; my business address is 1231 Market Street, San Francisco, California. On July, 1995 I served the within APPLICATION OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE TO APPEAR AS AMICUS CURIAE AND AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONER on the parties in this action by placing a true and correct copy thereof in a sealed envelope with postage thereon fully prepaid in the United States mail at San Francisco, California, addressed as follows: Attorney General 6000 State Bldg. San Francisco, CA 94102 F.D.A.P. 730 Harrison Street, #201 San Francisco, CA 94107 Contra Costa County Clerk 725 Court Street Martinez, CA 94533 Contra Costa County District Attorney 725 Court Street Martinez, CA 94533 Court of Appeal 303-2nd Street, Suite 600 San Francisco, CA 94107 9

William P. Cole Law Offices 1611 Telegraph Avenue, #1100 Oakland, CA 94612 Rodney Canada H-82510 Prison Road, P.O. Box W Represa, CA 95671 I declare under penalty of perjury that the foregoing is true and correct. Executed on July, 1995 at San Francisco, California. Colette Jappy 10