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).