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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
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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