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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
VII. MARIJUANA USERS IN THE COURTS: 1930-1965
Having studied the evolution of legislative hostility to marijuana from a regional
phenomenon with racial overtones to a nationwide paranoia, it is worthwhile to consider
the fate of marijuana users in the courts during this evolutionary period. After the
courts had summarily rejected the substantive constitutional arguments, appeals in
marijuana cases tended to focus on three contentions particularly germane to drug
violations: procedural objections arising from interrelated statutory schemes on the state
and federal levels punishing essentially the same conduct; objections to police conduct
intrinsic to victimless crimes; and objections to sufficiency of evidence at trial. Like
their legislative colleagues, state and federal translated what they knew of the drug's
mythical effects into overt hostility. Coupled with the traditionally conservative
treatment afforded the rights of criminal defendants, especially in state prosecutions,
this judicial hostility produced ever-lengthening sentences and few reversals.
A. Statutory Fantasies: The Complications of Federal Legislation
1. Quadruple "Jeopardy" and the "Killer Weed"
When Congress passed the Marihuana Tax Act in 1937, marijuana had already been included
in the Uniform Narcotic Drug Act and every state had enacted some form of marijuana
prohibition.1 In addition to its ostensible revenue-raising function, the Act was
obviously designed both to deter further use of the drug 2 and to facilitate enforcement
of the state laws.3 The statute assured the availability to state prosecutors of the order
forms filed with the IRS at the time of payment of the tax. 4 Congress had thought that
the order forms and registration requirements would develop an "adequate means of
publicizing dealings in marihuana in order to tax and control the traffic
effectively."5
Thus, after 1937, possession of marijuana without filing the transfer form and paying
the federal tax constituted a violation of both state and federal law;- yet filing the
form and paying the tax would probably not have eliminated the buyer's exposure to
prosecution under state law. Indeed, compliance would probably have readily identified the
buyer to state officials. To this unfairness the courts paid no heed, noting that exposure
to state and federal prosecution for the same act did not constitute double jeopardy7 and
that the fifth amendment did not protect defendants from prosecution for violation of
state law.8
After passage of the 1956 federal narcotic drug legislation9 possession of marijuana
constituted at least one, and often two, additional crimes. First, the Narcotic Drugs
Import and Export Act was amended10 in 1956 to punish directly illegal importation11 of
marijuana or other dealings in the drug with knowledge that it had been illegally
imported. Since mere possession was sufficient evidence to convict under the Act, 12
possession without registration and order form now constituted three crimes, and
compliance with the filing and tax provisions would have exposed the defendant to
liability under state law and under the importation provision if the original importation
was illegal. Again the courts saw no fifth amendment violation.13 Second, another
provision of the 1956 package required every person addicted to or using narcotics or
convicted of a violation of the narcotics or marijuana laws punishable by over one year's
imprisonment to register upon leaving the country. 14 Designed to aid the Government in
identifying potential smugglers. the statute was upheld, as a strict liability offense, 15
against a multitude of constitutional challenges. 16 Since penalties for marijuana
possession almost uniformly exceeded one year's imprisonment during this period, a first
offense possession conviction by either sovereign triggered the registration provision.
2. Statutory Presumptions
Because the federal statutes punished sale and possession of marijuana only indirectly,
each had to bridge the gap between those acts and the technical crimes-tax violations and
importation-related acts. As a bootstrap from the federal taxing power to a federal police
power, Congress chose presumptions. Thus, under the Marihuana Tax Act, possession plus
failure to produce the required forms was presumptive evidence of the criminal act-failure
to pay the tax17 -and the courts had no trouble upholding this provision. 18 In addition,
under the Import and Export Act possession of marijuana constituted presumptive evidence
of illegal importation and of defendant's knowledge of such importation.19
Against a rash of attacks on the rationality of this presumption, the lower federal
courts20 noted that the Supreme Court had upheld the same statutory language in the
original Federal Import and Export Act with respect to opium 21 and that there was
sufficient general knowledge that most marijuana was imported from Mexico to make the
presumption rational. Although the Ninth Circuit at one time indicated that a defendant
could rebut the presumption by showing that the marijuana in his possession was manicured
and therefore more likely to have been domestically grown,22 that court later held that
such proof was insufficient and that the defendant must also show actual domestic
production. 23
B. Attacks on State Legislation
Most attacks on the state statutes focused on the vagueness of statutory
terms-marijuana, however spelled, or cannabis or Indian Hemp24 -both as a scientific
matter and in terms of common experience.25 Predictably, however, few state courts were of
a mind to inhibit legislative proscription of the "killer weed." Due in part to
greatly exaggerated conceptions about the effects of the drug26 and in part to the ease
with which the mature plant is processed for the outlawed purposes,27 the courts construed
these statutory definitions as broadly as possible 28 despite the traditional rule of
strict construction of criminal statutes.
With the progressive increase in the severity of penalties which accompanied adoption
of the Uniform Act in the 1930's and 1940's and the surge of amendments in the 1950's in
the wake of the Boggs Act.29 Some problems of application arose. Interestingly enough.
some courts, applied the lesser penalty where one of two penalties could be imposed.30
Similarly many courts tended to impose minimum sentences until the late 1950's when they ,
too, lost all sense of proportion.31
C. Procedural Defenses and Entrapment
Statutory attacks during this period tended to reflect the complicated interrelation of
state and federal law and the scientific imprecision of legislative drafting. These
attacks were usually rebuffed, and defendants, caught in a squeeze of judicial and
legislative hostility, had few, if any, viable defenses based on whether or not they had
violated the regulatory scheme. Both state and federal statutes merely required the
prosecution to prove that the particular defendant was found in possession of a substance
which when chemically tested was found to be marijuana. There were few tricky problems of
proof, and the prosecution usually had a clear case. If these offenders were caught dead
to rights on the merits, the energetic attorney had to look elsewhere for his defense.
Fortunately, the exigencies of police practice in the field of narcotics law
enforcement provided a defendant's attorney with a new area of attack-procedural
irregularities in the arrest and apprehension of his client. The possession and sale of
marijuana epitomize the crime without a victim; neither seller nor buyer is apt to
complain of the transaction. In order to promote vigorous law enforcement in this area,
the police have had to use a series of undercover agents, surprise raids and often
questionable search and arrest techniques. Because of the nature of the conduct they are
trying to stifle, the police must intrude into a private social relationship where none of
the parties wants it- thus, the police have found it essential to employ highly secretive
and often patently deceitful practices. It is no coincidence that the vast developments in
the law of criminal procedure-especially in the fourth amendment area-have been outgrowths
primarily of narcotics and marijuana cases.
1. Search and Seizure
Today the major remedy for an illegal search is exclusion of the seized items as
evidence. Some states and the federal courts have used this exclusionary rule since early
in the twentieth century. However, before the 1961 decision in Mapp v. 0hio32 required all
states to adopt this remedy, many state courts did not exclude illegally seized evidence.
In jurisdictions without the rule, it scarcely helped the victim of an illegal search to
raise the point. So, for example, in a 1945 Louisiana case, the court permitted
introduction of marijuana seized without a warrant from defendant's room while he was out
of town .33
Because of the scope permitted the searching officer, things were not much better in
jurisdictions adhering to the exclusionary rule. In states using the rule before Mapp, the
crucial issue when the lawfulness of a search was questioned was whether or not the search
was reasonable under the circumstances.34 One might expect, in view of the judicial
hostility toward marijuana defendants, that the reasonableness standard provided
sufficient leeway for circumvention of the exclusionary rule in more than a few cases.35
Other end runs around the rule were developed in the federal system and in the states
purporting to apply the rule to evidence seized in an illegal search. First, courts upheld
searches if there was arguably an untainted source for seizure of the evidence. For
example, a court might admit marijuana seized in a concededly illegal search where a
police officer saw the marijuana before beginning the illegal search .36 Second, in order
to have standing to assert the inadmissibility of seized items, one had to admit the
narcotics in question belonged to hirn.37 Third, courts often permitted searches pursuant
to a warrant to extend far beyond the items named in the warrant 38 under what came to be
known as the contraband theory. This theory reasoned that certain items could never
lawfully be possessed and belonged only to the government; thus any seizure of these items
was permissible.39
2. Entrapment
In order for federal and state agents to detect narcotics traffic and use, it is
essential that they infiltrate the drug culture. Obtaining this inside information may
often involve police use of special employees - informers-or may require that the police
become directly involved in the commission of the criminal act .40 Many defendants in
narcotics cases have claimed that they were forced into sales or purchases of narcotics by
the police or their agents. These charges led to the affirmative defense of entrapment,
first recognized in federal courts by the Supreme Court in Sorrels v. United States.41
Since that time, the principles of the defense, as stated in that decision, were
reaffirmed by the Supreme Court in Sherman v. United States .42 In Sherman, a government
informer induced the defendant, who was trying to quit his use of narcotics and was
undergoing treatment at a narcotics rehabilitation center, to resume his use and supply
the informer. The Court held that the conduct of the police informer constituted
entrapment.
The entrapment defense would seem the ideal defense tactic in marijuana cases, because
so often the defendant has been apprehended due to some police informer or police trick
.43 However, the theoretical and practical outlines of the defense narrowly restrict its
scope and make it rarely successful. Moreover, because it may entail an admission that
defendant committed the act charged 44 it is usually the last resort.
From the beginning there have been two conflicting views of the entrapment defense. The
majority view has considered entrapment an exception to the given criminal statute on the
ground that the legislature could not have intended entrapment to fall within the
statutory definitions of the crime. With this as the theoretical justification of the
defense, the inquiry focuses on the innocence of the defendant but for the police conduct.
The practical question is whether the police merely supplied an opportunity for a person
with a preexisting prediliction to the criminal act. In the majority view this question of
fact is to be resolved by the jury. 45
Throughout the years a substantial minority position has contended that the entrapment
defense should be considered a police control mechanism. Under this view, the focus is on
the police and their conduct rather than on the character of the defendant. This rationale
is premised on the court's supervisory powers over tile administration of justice, and the
question of entrapment is one of law to be decided by the not by the jury.46
The focus of the defense on the character of the defendant and the use of usually
unsympathetic juries to decide the issue have greatly hindered the successfulness of the
entrapment defense. Since the defense must be raised affirmatively, the defendant bears a
heavy burden in proving that he would not have committed the crime but for the police
inducement. Thus, in Gilmore v. United States47 the defendant was unable to carry the
burden of proving that he would not have otherwise committed the marijuana offense. A
government agent approached the defendant and requested marijuana, but the jury found no
entrapment and the court could not declare that there was entrapment as a matter of law.
With the entrapment defense, as with illegal searches, the court has a known lawbreaker
before it and for this reason is reluctant to free him unless there is an overwhelming
reason to dismiss the charges, As a California court stated, It is not the entrapment of a
criminal upon which the law frowns . . . . " 48 The focus upon the defendant and his
mental state, rather than a focus on the government enforcement practices and their
possible effect of creating a particular crime, places an incredible burden on the
defendant to try to convince the jury that he is otherwise blameless. The use of informers
and special agents who become friendly with those suspected of dealing in marijuana, and
the use of this friendship to try to purchase marijuana, often by supplying the cash,49
are bound to have a detrimental effect on the lay enforcement officers as well as to
assure a slight increase in the supply of marijuana which would otherwise not have entered
the trade. Nevertheless, the defense as presently structured remains virtually impossible
for the defendant to raise with any real hope of success.
D. The Pro Forma Trial
When the marijuana defendant had exhausted his motions for dismissal or suppression of
the evidence and was brought to trial, he was usually in deep trouble, faced with judicial
hostility, lax methods of identification, and loose standards of proof. Convictions were
rarely reversed for any reason and especially not for insufficient evidence. And
penalties, no matter how harsh, were never set aside.
The first line of defense in the marijuana trial often involved the defendant's claim
that the substance seized from him was not really marijuana. In general, the state had no
difficulty proving the substance to be marijuana. In the important case, expert evidence
of chemical tests may have been introduced,50 but more commonly courts permitted the
testimony of police officers,51 undercover agents and other lay witnesses52 to be
sufficient to create a question of fact for the jury to decide. 53 Thus, when chemical
evidence was not introduced, juries were strongly inclined to believe the policeman or a
disinterested prosecution witness as against the defendant.54
This ease of identification combined with the uncritical acceptance of uncorroborated
testiniony,55 produced what amounted in fact to a very low standard of proof. Thus, in a
California case, People v. Janisse,56 the conviction was upheld on the testimony of
teenage boys, though the defendant's co-workers testified for an alibi. The evidence of
rookie police officers who later failed their civil service exams57 has been accepted over
the word of the defendant. Finally, even the testimony of witnesses who stand to benefit
only from the conviction of the defendant has been accepted without corroboration, whether
the benefit was indirect58 or direct.59 The wisdom of allowing such testimony by itself to
be legally sufficient for a conviction is doubtful.
Although in theory the state must prove the defendant's possession was knowing,60
through the use of circumstantial evidence the state usually encountered few problems in
meeting its burden of proof. The state was permitted to use circumstantial evidence to
link the defendant to a quantity of marijuana, but where only circumstantial evidence
existed there must have been an instruction to the that all other reasonable inferences of
innocence had been overcome.61 For example, behavior such as running away from police, if
marijuana was found along the path run, was sufficient to link the defendant to possession
62 though mere proximity without other guilty behavior was not enough to prove possession.
63
Finally, judicial hostility to the "morally depraved" marijuana user was so
strong that often judges condoned inflammatory statements by the prosecution to the jury
about the nature of the drug and its users. Indeed, some judges themselves often
participated in these highly emotional statements. For example, one judge in instructing a
jury announced:
Marijuana is a vicious, demoralizing substance that robs a person of morality honor,
integrity, decency, and all the virtues that are the foundation of good character and good
citizenship. The Government is constantly engaged in an effort to stamp out traffic in
this and in narcotic drugs. Officers of the Government are employed in this effort usually
and are entitled to credit for their loyalty and integrity.64
In the same way, direct aspersions toward a defendant's character were tolerated .65
For instance, courts overlooked prosecution comments that the defendant sold his drugs
near a 'junior high school" or that drug use among teenagers must be stopped .66
In sum, then, defendants in marijuana cases had great difficulties at trial during this
period. Easy identification methods, jury acceptance of uncorroborated testimony, use of
circumstantial evidence to prove defendant's possession was knowing, and the 'judicial
participation in inflammatory statements to the jury made defense success at trial a
virtual impossibility.
Footnotes
1 See p. 1034 supra.
2 See, e.g., Hearings on H.R. 006 Before a Subcomm. of the Senate Comm. on Finance, 75th
Cong., 1st Sess. 5-7 (1937); H.R. REP. No. 792, 75th Cong., 1st Sess. 1-3 (1937).
3 See Leary v. United States, 395 U.S. 6, 26-27 (1969). 4 26 U.S.C. § 4773 (1964).
4 H.R. REP. No. 792, 75th Cong., 1st Sess. 2 (1937); S. REP. No. 900, 7Sth Cong., 1st
Sess. 3 (1937).
5 With minor exceptions, the Marihuana Tax Act requires all transactions in marijuana
to be carried out by written order form. 26 U.S.C. §§ 4741-44 (1964). It is unlawful for
a transferor to transfer except by such form obtained by the transferee, 26 U.S.C. S 4742
(1964), and for the transferee to acquire, transport or conceal marijuana without filing
the transfer form, registering with the IRS and paying the applicable transfer tax. 26
U.S.C. § 4744 (a) (1964). For heretofore unregistered persons, that tax is $100 an ounce.
26 U.S.C. § 4741 (1964). Since marijuana was excised from the United States
Pharmacopoeia, there have been few legitimate transactions by registered persons. THE
PRESIDENTS COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, REPORT: THE
CHALLENGE OF CRIME IN A FREE SOCIETY 214 (1967). Since .the tax is otherwise prohibitive,
the Act is in effect almost entirely a criminal law; the crime is having anything to do
with marijuana-possession, sale, acquisition or importation-since proof of possession
coupled with failure, after reasonable notice and demand by the Secretary of the Treasury
or his delegate, to produce the transfer form is "presumptive evidence" of
guilt. 26 U.S.C. § 4744(a) (1964).
7 Cf. Abbate v. United States, 359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S. 121
(1959); United States v. Lanza, 260 U.S. 377 (1922). One state court held, as an
interpretation of state legislative policy rather than under constitutional compulsion,
that acquittal of a federal marijuana possession charge would constitute a defense to the
same state charge. State v. Wortham, 63 Ariz. 148, 160 P.2d 352 (1945).
8 See Leary v. United States, 383 F.2d 851, 870 (5th Cir. 1967), revd, 395 U.S. 6
(1969); Haynes v. United States, 339 F.2d 30, 31-32 (5th Cir.), cert. denied, 380 U.S. 924
(1965).
9 See pp. 1077-78 supra.
10 21 U.S.C. § 176a (1964).
11 Importation "contrary to law` was that in violation of the Marihuana Tax Act,
26 U.S.C. S 4755 (1964), or the Customs Act, 19 U.S.C. S§ 1496-97 (1964).
12 See note 19 infra and accompanying text.
13 See, e.g., Rule v. United States, 362 F.2d 215 (5th Cir. 1966), cert. denied, 385
U.S. 1018 (1967).
14 18 U.S.C. § 1407 (1964).
15 Application of the statute was particularly harsh. Even though defendant, found
guilty of a drug offense and sent to the California Youth Authority for several months,
had been told upon release that his record was clean, the court held that he had violated
the statute by failing to register. Adams v. United States, 299 F.2d 327 (9th Cir. 1962).
16 See Palma v. United States, 261 F.2d 93 (5th Cir. 1958'); Reyes v. United States,
258 F.2d 774 (9th Cir. 1958); United States v. Eramdjian, 155 F. Supp. 914 (S.D. Cal.
1957). The courts struggled mightily with arbitrariness, vagueness, right to travel, self
incrimination, and equal protection arguments, but upheld the statute. But cf. Russell v.
United States, 306 F.2d 402 (9th Cir. 1962) (gun registration requirement unconstitutional
since it required admission of presumptively unlawful possession).
17 26 U.S.C. S 4744 (a) (1964).
18 E.g., Manning v. United States, 274 F.2d 926 (5th Cir.), rcv'd on other grounds on
rehearing, 280 F.2d 422 (5th Cir. 1960).
This provision was early interpreted not to require government agents to request the
transfer form at the time of arrest, the courts holding that possession of the form was an
affirmative defense. E.g., Hill v. United States, 261 F.2d 483 (9th Cir. 1958); Hensley v.
United States, 160 F.2d 257 (D.C. Cir.), cert. denied, 331 U.S. 817 (1947).
19 21 U.S.C. § 176a (1964).
20 Leary v. United States, 383 F.2d 851, 869 (5th Cir. 1967), rev'd, 395 U.S. 6 (1969);
Borne v. United States, 332 F.2d 565 (5th Cir. 1964); United States v. Gibson, 310 F.2d 79
(2d Cir. 1962); Claypole v. United States, 280 F.2d 768 (9th Cir. 1960); Butler v. United
States, 273 F.2d 436 (9th Cir. 1959); Caudillo v. United States, 253 F.2d 513 (9th Cir.),
cert. denied, 357 U.S. 931 (1958).
21 Yee Hem v. United States, 269 U.S. 178 (1925).
22 Caudillo v. United States, 253 F.2d 513 (9th Cir.), cert. denied, 357 U.S. 931
(1958). Implying that the presumption of importation was a rule of evidence, not of
substantive law, the court noted that imported marijuana was ordinarily composed of mixed
twigs and stems since the growers waited until maturity before harvesting. In the United
States, on the other hand, growers avoided police detection by picking individual leaves
before the plant matured, Since appellant possessed mixed twigs and stems, the court
upheld application of the presumption; the clear suggestion, however, was that the
presumption would not be applied to manicured marijuana.
23 Costello v. United States, 324 F.2d 260 (9th Cir. 1963), cert. denied, 376 U.S. 930
(1964).
24 Use of the Latin word "cannabis" was challenged as an unconstitutionally
vague definition of the prohibited substance in People v. Oliver, 66 Cal. App. 2d 431, 152
P.2d 329 (Dist. Ct. App. 1944), on the basis of an early holding that the use of Latin to
define a sex crime was unconstitutionally vague, Ex parte Lockett, 179 Cal. 581, 178 P.
134 (1919) (fellatio and cunnilingus). -In rejecting the vagueness argument, the court
held that "cannabis" was later explained in the statute by the use of the word
"marijuana" and that the two words were synonymous. See People v. Martinez, 117
Cal. App. 2d 701, 256 P.2d 1028 (Dist. Ct. App. 1953) ("Indian Hemp" not
unconstitutionally vague); cf. People v. Johnson, 147 Cal. App. 2d 417, 305 P.2d 82 (Dist.
Ct. App. 1957) ("lophophora" not unconstitutionally vague reference to peyote).
25A related issue was whether the charge of possession of "marijuana" was
specific enough where there were statutory exceptions to protect the bird seed and hemp
industries. The general rule was that the state need not allege that the parts possessed
were not within the statutory exceptions. E.g., Simpson v. State, 129 Fla. 1279 176 So.
515 (1937). Contra, People v. Sowrd, 370 111. 140, 18 N.E.2d 176 (1938').
26See, e.g., Simpson v. State, 129 Fla. 127, 131, 176 So. 515, 517 (1937) (marijuana
causes erotic hallucinations, loss of sense, false conviction, loss of values, a general
weakening of powers, making it dangerous to mind and body). In Commonwealth v. LaRosa, 42
Pa. D. & C. 34, 36-37 (Fayette County Dist. Ct. 1941), the court stated:
The deleterious, even vicious, qualities of the plant which render it highly dangerous
to the mind and body, upon which it operates to destroy the will, to produce imaginary
delectable situations, and gradually to weaken the physical powers, reside in a sticky
resin of great narcotic power that pervades the entire plant .... 27 State v. Bonoa, 172
La. 955, 136 So. 15 (1931).
28 See State v. Hall, 41 Wash. 2d 446, 249 P.2d 769 (1952); Commonwealth v. LaRosa, 42
Pa. D. & C. 34 (Fayette County Dist. Ct. 1941). LaRosa held that the statute, passed
two years earlier, created a duty to cut down marijuana plants before they could seed and
that defendant had no right to plant marijuana even if he meant to cut the plants before
maturity. Defendant's conviction for possession of two thousand mature plants and one
hundred fifty thousand immature plants was accordingly affirmed.
29 See pp. 1074-75 supra.
30 E.g., State v. Economy, 61 Nev. 394, 130 P.2d 264 (1942).
31 This was particularly true in the Southwest, where use cases were more numerous and
appeals more frequent. Indicative of this trend are the following Texas cases in
chronological order: Gonzales v. State, 108 Tex. Crim. 253, 299 S.W. 901 (1928) ($25
fine); Baker v. State, 123 Tex. Crim. 209, 58 S.W.2d 534 (1933) (5-year sentence
reversed); Horton v. State, 123 Tex. Crim. 237, 58 S.W.2d 833 (1933) (2-year sentence
reversed); Spangler v. State, 135 Tex. Crim. 36, 117 S.W.2d 63 (1938) 1-year sentence
affirmed); Ramirez v. State, 135 Tex. Crim. 442, 125 S.W.2d 597 (1938) (3-year sentence
affirmed) (possession of a crop of 300 plants); Fawcett v. State, 137 Tex. Crim. 14, 127
S.W.2d 905 (1939) (2-year sentence reversed); Anderson v. State, 137 Tex. Crim. 461, 131
S.W.2d 961 (1939) (5-year sentence affirmed) (defendant tried to dispose of marijuana in
station house); Martinez v. State, 138 Tex. Crim. 51, 134 SW.2d 276 (1939) (6-year
sentence reversed); Carrizal v. State, 138 Tex. Crim. 103, 134 S.W.2d 287 (1939) (2-year
sentence affirmed); Lufkin v. State, 144 Tex. Crim. 501, 164 S.W.2d 709 (1942) (2-year
affirmed); Cornelius v. State, 158 Tex. Crim. 356, 256 S.W.2d 102 (1953) (2-year sentence
affirmed); Sparks v. State, 159 Tex. Crim. 111, 261 S.W.2d 571 (1953) (2-year sentence
reversed); Rao v. State, 160 Tex. Crim. 416, 271 S.W.2d 426 (1954) (2-10 year sentence);
Brewer v. State, 161 Tex. Crim. 28, 274 S.W.2d 411 (1954) (8-year sentence affirmed);
Torres v. State, 161 Tex. Crim. 480, 278 SW.2d 853 (1955) (3-year sentence affirmed);
Gomez v. State, 162 Tex. Crim. 30, 280 SW.2d 279 (1955) (5-25 year sentence affirmed);
McWhorter v. State, 163 Tex. Crim. 318, 291 SW.2d 329 (1956) (2-3 year sentence affirmed);
Crosco v. State, 164 Tex. Crim. 257, 298 S.W.2d 134 (1957) (2-year sentence affirmed);
Garcia v. State, 166 Tex. Crim. 482, 316 S.W.2d 734 (1958) (life sentence affirmed);
Sherr2d v. State, 167 Tex. Crim. 119, 318 SW.2d 900 (1958) (13-year sentence reversed);
Leal v. State, 169 Tex. Crim. 222, 332 S.W.2d 729 (1959) (75-year sentence affirmed) (one
prior conviction); King v. State, 169 Tex. Crim. 34, 335 S.W.2d 378 (1959) (7-year
sentence affirmed); Locke v. State, 169 Tex. Crim. 361, 334 S.W.2d 292 (1960) (15-year
sentence affirmed); Massiate v. State, 365 S.W.2d 802 (Tex. Crim. App. 1963) (life
sentence affirmed) (two prior burglary convictions).
32 367 U.S. 643 (1961).
33 State v. Shotts, 207 La. 898, 22 So. 2d 209, cert. denied, 326 U.S. 730 (1945).
34 See, e.g., United States v. Rabinowitz, 339 U.S. 56 (1950). The Court here upheld
the search of a one-room office on the grounds that the search was incident to a lawful
arrest, and said that the scope of such searches must turn on the reasonableness of the
search considering all the underlying circumstances.
35 Cf. Anderson v. State, 137 Tex. Crim. 461, 131 S.W.2d 961 (1939). See also Lea) v.
State, 169 Tex. Crim. 222, 332 S.W.2d 729 (1959), holding it reasonable for a policeman to
search defendant's shorts where he suspected from an informer's tip that the "out of
the ordinary bulge" in defendant's pants concealed marijuana.
36 Ramirez v. State, 135 Tex. Crim. 442, 125 SW.2d 597 (1938). Eventually, courts began
to allow the admission of illegally seized evidence if there was any untainted source
whatsoever. Thus, where defendant testified that the police had found marijuana in a
dresser drawer in his house, the court permitted the state to introduce the marijuana
based on the untainted source of defendant's own statements in court. Rao v. State, 160
Tex. Crim, 416, 271 S.W_2d 426 (1954).
37 See Connolly v. Medalie, 58 F.2d 629 (2d Cir. 1932). In that case judge Learned Hand
wrote:
Men just wince at admitting that they were the owners, or in possession, of contraband
property; may wish at once to secure the remedies of a possessor, and avoid the perils of
the part; but equivocation will not serve. If they come as victims, they must take on that
role, with enough detail to cast them without question. The petitioners at bar shrank from
that predicament; but they were obliged to choose one horn of the dilemma.
Id. at 630
38 See King v. State, 169 Tex. Crim. 34, 335 SAV.2d 378 (1959). Here the Texas court
held, with one dissent, that a search warrant for the premises of the husband authorized a
search of the wife's bag in the house; her conviction for the materials found in the bag
was affirmed,
In the field of search incident to an arrest, courts went even farther. Thus, a Texas
court affirmed a conviction based upon the arrest and search of a defendant, even though
the police officer admitted he had arrested the defendant solely for the purpose of
searching him. The officer ostensibly arrested the defendant for a knife fight, but later
admitted that he had arrested him because he suspected him of possession of marijuana. The
court noted that the defendant was unable to give any authority for his contention that
the state should be bound by the officer's statement as to the purpose of the arrest.
Gonzales v. State, 160 Tex. Crim. 548, 272 S.W.2d 524 (1954).
39 It had been held that contraband may be seized in a search incident to arrest
although the items taken had no relationship to the crime for which the arrest was made.
Harris v. United States, 331 U.S. 145 (1947). overruled, Chimel v. California, 395 U.S.
752 (1969).
40 THE PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK
FORCE REPORT: NARCOTICS AND DRUG ABUSE 8. See also MASS PRODUCTION JUSTICE AND THE
CONSTITUTIONAL IDEAL 52-53 (C. Whitebread ed. 1970).
41 287 U.S. 435 (1932).
42 356 U.S. 369 (1958).
43 See A. LITTLE, DRUG ABUSE AND LAW ENFORCEMENT (1967).
44 See Henderson v. United States, 237 F.2d 169, 172 (1956); State v. Taylor, 375
S.W.2d 58, 62 (Mo. 1964). But see People v. Perez, 62 Cal. 2d 769, 401 P.2d 934, 44 Cal.
Rptr. 326 (1965) (Traynor, C.J.).
45 Sherman v. United States, 356 U.S. 369, 377 & n.8 (1958) (Warren, GJ.).
46 Id. it 378 (Frankfurter, J., concurring); Sorrells v. United States, 287 U.S. 435,
453-59 (1932) (Roberts, J., dissenting).
47 228 F.2d 121 (5th Cir. 1955), See also United States v. Davis 272 F.2d 149 (7th Cit.
1959). Davis was not strictly an entrapment case; the government agents had arranged for
the transportation of a hag of marijuana front Texas to Chicago. The defendant argued that
the agents' activities were illegal, and for that reason, the government was estopped from
prosecuting him and that the evidence was inadmissible. The trial court found that the
defendant had arranged for the deal and instructed the jury to acquit if the agents had
illegally caused the importation. As in Gilmore, the jury was not willing to condemn the
police,
48 People v. Branch, 119 Cal. App. 2d 490, 494, 260 P.2d 27, 30 (Dist. Ct. App. 1953),
where the police had their witness call the defendant and ask to buy some marijuana and
then accompanied the witness to the defendant's home.
49 See People v. Williams, 146 Cal. App. 2d 656, 304 P.2d 100 (1956); Commonwealth v.
Jones, 46 Dauph. 300 (Dauphin County, Pa., Dist. Ct. 1938).
50 See, e.g., People v. Agajanian, 97 Cal. App. 2d 399, 218 P.2d 114 (Dist. Ct. App.
1950); People v. Oliver, 66 Cal. App. 2d 431, 152 P.2d 329 (Dist. Ct. App. 1944); Valdez
v. State, 135 Tex. Crim. 201, 117 S.W.2d 459 (1938).
51 McWhorter v. State, 163 Tex. Crim. 318, 291 S.W.2d 329 (1956).
52 People v. Sanchez, 197 Cal. App. 2d 617, 17 Cal. Rptr. 230 (Dist. Ct. App. 1961);
People v. Haggard, 181 Cal. App. 2d 38, 4 Cal. Rptr. 898 (Dist. Ct. App. 1960); People v.
Janisse, 162 Cal. App. 2d 117, 328 P.2d 11 (Dist. Ct. App. 1958). Even minors who receive
the marijuana from the defendant are competent to identify the substance. People v.
Sanchez, supra.
53 See Hernandez v. State, 137 Tex. Crim. 343, 129 S.W.2d 301 (1938).
54 See, e.g., cases cited at note 52 supra.
55See, e.g., People v. Ballejos, 216 Cal. App. 2d 286@ 30 Cal. Rptr. 725 (Dist. Ct.
App. 1963); People v. Johnson, 99 Cal. App. 2d 559, 222 P.2d 58 (Dist. Ct. App. 1950).
overruled, People v. Perez, 62 Cal. 2d 769, 401 P.2d 934, 44 CA Rptr. 326 0965) (Traynor,
C.J.). See also People v. Sanchez, 197 C21. App, 2d 617, 17 Cal, Rptr. 230 (Dist. Ct. App.
1961); People v. Alinnns, 110 Cal. .@,\pp. 2d 310, 242 P.2d 331 (Dist. Ct. App.), ccrt.
dcnied, 344 U.S. 846 (1952).
56 162 CA App. 2d 117, 328 P.2d 11 Misr. Ct. App. 1958) (it was not too improbable that
defendant would have given marijuana away to a near stranger). But see People v.
MacCagnan, 129 Cal. App, 2d 100, 276 P.2d 679 (Dist. Ct. App. 1954) (evidence of the price
admitted to show the unlikelihood that defendant was given the marijuana).
57 People v. Gebron, 124 C21. App, 2d 675, 208 P.2d 1068 (Dist. Ct. App. 1954).
58 People v. Mimms, 110 Ca]. App. 2d 310, 242 P.2d 331 (Dist. Ct. App.), cert. denied,
344 U.S. 846 (1952).
59 People V. JA7irlSton, 46 Ca]. 2d 151, 293 P.2d 40 (1956) (witnesses against
defendant for sale to minor were due to go on trial themselves); People v. Ballejos, 216
Cal. App. 2d 286, 30 Cal Rptr. 725 (Dist, Ct. App. 1963) (agent alleged to be paid by
government if successful was only witness against defendant).
60 See People v. Carrasco, 159 Cal. App. 2d 63, 32i P.2d 129 (Dist. Ct. App. 1958),
People v. Antista, 129 Cal. App. 2d 47, 276 P.2d 177 (Dist. Ct. App. 1954) (defendant
never reported having previously used marijuana and apartment used by many other persons);
People v. Candiotto, 128 Cal. App. 2d 347, 275 P.2d 500 (Dist. Ct. App. 1954); People v.
Savage, 128 Cal. App. 2d 123, 274 P.2d 905 (Dist. Ct. App. 1954) (maid found marijuana
wrapped in napkins two days after a party held to be insufficient evidence) (trial judge
held to be prejudiced); Fawcett V. State, 137 Tex. Crim. 14, 127, S.W.2d 905 (1939)
(reversed for failure to give instruction on ignorance as a defense).
61 Gonzales v. People, 128 Colo. 522, 264 P.2d 508 (1953); State v. Walker, 54 N.M.
302, 223 P.2d 943 (1950).
62 Perez v. State, 34 Ala. App. 406, 40 So. 2d 344 (Ct. App. 1949) (paper in apartment
matched paper on marijuana). See also People v. Rodriguez, 151 Cal. App. 2d 598, 312 P.2d
272 (Dist. Ct. App. 1957) (defendant knowingly helping owner move marijuana is sufficient
for possession).
63 People v. Miller, 162 Cal. App. 2d 96, 328 P.2d 506 (Dist. Ct. App. 1958)
(reversible error to introduce marijuana found down the street from the defendant's
apartment without further proof of defendant's ownership) - In Sherrad v. State, 167 Tex.
Crim. 119, 318 S.W.2d 900 (1958), defendant's conviction was reversed for the failure of
the prosecutor to connect the payment to the defendant with the later payment to another
defendant who made delivery of the marijuana to the agent. The court noted that defendant
had been charged as the principal, and that no proof of any conspiracy had been made. See
also People v. Vasquez, 135 Cal. App. 2d 446, 287 P.2d 385 (Dist. Ct. App. 1955)
(defendant chargeable with transporting, not possession, where he told co-defendant to
throw marijuana away and co-defendant did not do so).
64 Lake v. United States, 302 F.2d 452 (8th Cir. 1962).
65 See, e.g., People v. Sykes, 44 Cal. 2d 166, 280 P.2d 769, cert. denied, 349 U.S. 934
(1955) (evidence of defendant's activities as a pimp admissible in a trial on charge of
marijuana sale to minor in order to prove that there was a plot to subjugate both the body
and mind of the minor) (Traynor, CJ, dissented, stating that the evidence was prejudicial
and of no probative value); Escamilla v. State, 162 Tex. Crim. 346, 285 SW.2d 216 (1955)
(permissible for prosecutor to call defendant a peddler and then to withdraw statement);
People v. Salo, 73 Cal. App. 2d 685, 167 P.2d 269 (Dist. Ct. App. 1946); Medina v. State,
149 Tex, Crim. 249, 193 S.W.2d 196 (1946) (no error to call defendant a dealer in
marijuana in possession trial).
66 Torres v. State, 161 Tex. Crim. 480, 278 S.W.2d 85 3 (195 5).
67 People v. Head, 108 Cal. App. 2d 734, 239 P.2d 506 (Dist. Ct. App. 1952).
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