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This page is continued from www.lawyerdude.s5.com/6416pt3.html
This page is www.lawyerdude.s5.com/6416pt4.html
This fat brief of 86 pages is broken into 9 pieces on the internet.
www.lawyerdude.s5.com/6416.html Contains the list of approximately 90 issues.
www.lawyerdude.s5.com/6416pt2.html Contains the tables of cases and other authorities cited herein. Cases are in alphabetical order
www.lawyerdude.s5.com/6416pt3.html Contains the factual history of the case with verbal (not electronic) link to the transcript. Contains the chronology of the case.
www.lawyerdude.s5.com/6416pt4.html Begins the argument in my case. Goes to page 23 of the brief.
www.lawyerdude.s5.com/6416pt5.html Contains pages 24-31 of the argument.
www.lawyerdude.s5.com/6416pt6.html Pages 31 through 54 of the argument.
www.lawyerdude.s5.com/6416pt7.html Pages 55 through beginning of 76 of the argument
www.lawyerdude.s5.com/6416pt8.html Pages 76 through 84, the end of the argument
www.lawyerdude.s5.com/6416indx.html This last web page is a Topical Index of the brief.
pages 9 - 23
ARGUMENT
PROLOGUE - HISTORY OF JUDICIAL CONTROL OF INFORMANTS
"From early times law enforcement authorities have utilized informers. Their value in ferreting out crime
was recognized in the ancient practice of English Medieval law called APPROVEMENT. Being
arraigned on a charge of treason or felony the APPROVER confessed his guilt and, in order to obtain a
pardon, offered to appeal and convict other criminals called the appellees. If the appellees were found
guilty the approver was pardoned. If the appellees were acquitted, the approver was hanged." - Judicial
Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale Law Journal 1901. The
practice of APPROVEMENT is discussed in 4 BL Comm 350 and Whiskey cases 99 US 594 (1878).
"Next in importance to personal freedom is immunity from suspicions and jealous
observation. Men may be without restraints upon their liberty; they may pass to and fro at
pleasure; but if their steps are tracked by spies and informers, their words noted down for
crimination, their associates watched as conspirators, - who shall say that they are free? Nothing
is more revolting to Englishmen than the espionage which forms part of the administrative
system of continental despotisms. It haunts men like an evil genius, chills their gayety, restrains
their wit, casts a shadow over their friendships, and blights their domestic hearth. The freedom
of a country may be measured by its immunity from this baleful agency. Rulers who distrust
their own people must govern in a spirit of absolutism; and suspected subjects will be ever
sensible of their bondage." - May. Constitutional History of England. 2:275 (1863)
"I love my country. I fear my government." - Seen on bumper sticker in Ventura County,
California.
It is in light of this ancient and persistent disdain for treachery and intrusion that we view the
proper application of our present manifestation of this sentiment as reflected in the exclusionary rule and
more particularly in Penal Code § 1111 - which precludes a conviction based merely on the testimony of
an accomplice absent corroboration of WHO actually committed the crime - in this case who actually
exerted dominion and control of the LSD in that special legal meaning that is different from the literal
meaning of the word "possession" that has evolved from a long line of cases as explained in issue
#26 - the Spann transmutation issue.
Issue #1.0: Penal Code §1111. Accomplice testimony w/o sufficient corroboration.
Absent the testimony of accomplice Jessica Jobin, there is no evidence that Palaschak - as
compared to Jessica Jobin - actually exerted "dominion and control" (the indicia of possession) over
the LSD and therefore the conviction must be overturned since penal code section 1111 precludes a
conviction based on the uncorroborated testimony of an accomplice.
The situation is quite similar to the situation in People v Lloyd (1967) 253 CA 2d 236 wherein
the court of appeal reversed the conviction of a man who was arrested with the accomplice in a bar after
10
hours. Police suspecting a break-in came to the bar and found marijuana and amphetamine in the
woman's purse. The man worked at the bar. Earlier in the evening the man had agreed to work until 2
and close. The woman came in. The man noticed an envelope on the bar. He looked at it. It was
marijuana. The woman came in the bar and looked at the marijuana and left it alone also. The man had
never smoked marijuana or seen marijuana before. The bar closed at 2. There was some smooching
between the man and the woman. The police arrived and found the drugs in the woman's purse. The
woman told a different story. She said that the guy offered marijuana to her although she did
acknowledge ownership of the pills in her purse but she did not know how the marijuana got into her
purse. At trial they both were convicted. The court of appeal reversed the man's conviction on the
basis of penal code 1111 - the applicable words being "the corroboration is not sufficient if it
merely shows the commission of the offense [the offense here being "dominion and control" of
the drug] or the circumstances thereof." By implication the additional element that must be
corroborated is WHO committed the crime. The rationale and reason for penal code 1111 is that
the accomplice is always motivated to prove that the other person did it - and it is precisely that
element of the crime that must be corroborated. The court in Lloyd said:
"In the case at bench the only 2 elements of the offense which were in issue were (1) the
exercise of dominion and control, and (2) knowledge that the material was a narcotic. Defendant
conceded that he had the package in his had, but that does not necessarily establish
guilt. It has long been the rule that proof of mere presence at the scene and an
opportunity to commit the offense are not sufficient to satisfy section 1111."
Similarly, Jessica Jobin was caught with the drugs in her purse and implicated Palaschak in exchange for
a deal. Regardless of her credibility, the penal code precludes a conviction where the corroboration fails to
extend to WHO actually committed the crime - the crime here being POSSESSION as distinguished in its
complicated SPANN fashion (Spann is discussed in section 26) from MERE USE of LSD. The fact that
somebody possessed LSD is corroborated and the circumstances are partially corroborated but not adequately
corroborated to establish that it was Palaschak who possessed LSD in addition to Jessica Jobin. Only the
testimony of Jessica Jobin places the LSD in Palaschak's hand or in a card in his control. Melissa
Schwentner mentioned nothing about a birthday card - and she testified that she not there when
Palaschak presumably consumed the LSD. (RT 196:26)
At RT 98:3 Jessica Jobin, the accomplice describes how she took the birthday card (which she earlier
gave to Palaschak) from Palaschak's hand and removed the LSD and tore off a piece, etc. There is simply no
corroboration for these acts (which even if corroborated would constitute minuscule "dominion and control" - and
as we shall argue later, insufficient - "dominion and control"). Granted, there is corroboration that Palaschak
indeed ingested some psychotropic drug but there is no corroboration that he exerted dominion and control over
it in the special sense, explained in Spann that the term "dominion and control" has in a case where use must be
distinguished from possession. Melissa Schwentner's testimony reveals that she was gone when
Palaschak and Jessica Jobin consumed the LSD. At transcript page 193 and page 194 Schwentner recalls
11
coming back to the office and finding Palaschak and Jobin acting peculiar - however their is no testimony that
Schwentner was present during any handling of the LSD or the alleged birthday card. In fact, the only testimony
regarding the alleged birthday card is from accomplice Jessica - and therefore uncorroborated . There is no
testimony from Schwentner regarding any card - or any LSD in the dominion and control of Palaschak. The
testimony of the 2 newspaper reporters adds nothing to corroborate the dominion and control of the LSD by
Palaschak. Reporter Gary Gorman (RT 307, line 17) testified that his news story reported that Palaschak said
that he "obtained the LSD the afternoon of May 9th" - the afternoon that he was arrested. Reporter Jeff Sturgeon
testified (RT page 281, line 1-2) that his news story reported that Palaschak "admitted . . . that he ate one and a
half doses of a drug that he was told was LSD". There is no testimony from either of the reporters as to
Palaschak's dominion and control of the drug - except for his ingestion which is not dominion and control.
Issue #2.0: CONSENT IN SURRENDERING THE LSD - "We're going to tear this place apart if you do not
give us the LSD" (Nov 4 5:23) and (RT 150:15) - "[We'll] find it anyway" (Oct 31, 56:11) Key testimony:
Suppression Hearing. October 31, 1991. Page 56. line 11: Question by Defense Counsel Pell: "Did you tell her
you would FIND IT ANYWAY?" Answer by Arresting Officer Dawson: "YES." This court of appeal should reverse
Judge McNally's denial of defendant Palaschak's motion to suppress evidence because there is not substantial
evidence to support the court's conclusion that co-defendant Jessica freely consented to reveal and surrender the
LSD; Judge McNally appears to have forgotten that Officer Dawson admitted that she threatened that she
"would find it anyway" (Oct 31, 56:11) in order to coerce co-defendant Jessica Jobin into surrendering the LSD
- which constitutes coercion - and even the most subtle coercion precludes consent. - Schneckloth v
Bustamonte (1973) 412 US 218, 36 L Ed 2d 854, 93 S Ct 2041 holds (at 412 US 228):
"[T]th 4th and 14th amendments require that a consent NOT BE COERCED, BY EXPLICIT OR
IMPLICIT MEANS, BY IMPLIED THREAT OR COVERT FORCE. FOR NO MATTER HOW
SUBTLY THE COERCION WERE APPLIED, THE RESULTING "CONSENT" WOULD BE NO
MORE THAN A PRETEXT FOR THE UNJUSTIFIED POLICE INTRUSION AGAINST WHICH
THE 4TH AMENDMENT IS DIRECTED. In the words of the classic admonition . .
From the record one can only conclude that Judge McNally forgot that Officer Dawson admitted making
the threat that she "would find it anyway" (Oct 31, 56:11). Judge McNally heard Dawson make the statement
on Thursday October 31, 1991 but did not rule on the suppression motion on Monday November 4, 1991. Judge
McNally said (Nov 4, page 31, line 16):
"I accept the testimony that the officer merely asked her where's the LSD and she went and got
it out of her purse. 'I want the LSD' - I don't think that's necessarily - and I don't think that is at all
in this case an overbearing display of government authority or power."
Whether Judge McNally simply forgot the admission that he heard several days prior - or whether he
heard it and concluded otherwise (which is very unlikely considering that the testimony of Officer Dawson was an
admission that Officer Dawson applied coercion albeit subtle coercion) - either way the result is the same - the
denial of the suppression motion must be reversed.
Dawson's statement (Suppression Hearing: Oct 31, 1991 56:11) to accomplice Jessica Jobin that she
would "Find it anyway" is remarkably similar to "You know what I am after" which was the statement of the
1It is interesting that Sibron served his jail sentence before the case was argued in the US Supreme
Court - and also interesting that the district attorney in Sibron confessed error in the US Supreme Court and
admitted that the police violated Sibron's rights. Regarding mootness, see When criminal case becomes
moot as to preclude review of or attack on conviction or sentence 87 L Ed 1201, 1 L Ed 2d 1876, 9
ALR3d 462, Acceptance of probation, parole, or suspension of sentence as waiver of error or right
to appeal or to move for a new trial. 117 ALR 929, Payment of fine, serving sentence, or discharge
on habeas corpus, as waiver of right to review conviction. 18 ALR 867, 74 ALR 638.
12
police officer in Sibron v New York 392 US 40 at 45, 20 L Ed 2d 917 at 925, 88 S Ct 1889 wherein the conviction
was reversed. Also similarly, accomplice Jobin had been ordered into the hallway to talk with Officer Matz (Nov
4: 6:15 (Question) to 8:25 (Answer)) because (obviously) Matz and Dawson suspected (clearly without adequate
probable cause) that Jobin and Palaschak possessed LSD -just as Sibron had been asked to leave the
restaurant after officers suspected without probable cause that he possessed drugs.1 The court of appeal did not
consider this issue because appointed counsel Dolge considered only one issue - the Spann issue. Furthermore
the court of appeal only had half of the transcript to the suppression hearing. Similarly the Supreme
Court only had half the transcript to the suppression hearing. Furthermore even the trial court should
have had a transcript in a case where it divided the suppression hearing into 2 session which were 3
days apart. Additional problem: The reporter’s transcript mistakenly omits day 1 of the suppression hearing.
In fact Officer Dawson would NOT lawfully have found any LSD - and therefore Dawson's threat to find it
anyway (Oct 31, 1991 56:11) threatened unlawful activity - and such a threat vitiates consent. Dawson had
inadequate probable cause for a search warrant. She had no reason at that point to arrest Jessica Jobin and
therefore would not have discovered the LSD in a booking because there would have been no booking of Jessica
Jobin. "The nature of the exigency defines the scope of the search" - US v Socey cited elsewhere. The only
ostensible exigency here was concern for a possible future rape - but any true concern in that regard was
dissipated when Jessica Jobin told the officers that she was okay. In fact Jobin objected twice to this police
intrusion. Jobin protested (with prudent tact): "What's going on here? Is there something wrong?" (at Oct 31,
page 35, line 6 - testimony of Officer Matz) and again she protested "Is there a problem?" (Oct 31, page 35, line
25).
"Exigent circumstances may justify a warrantless entry and securing the premises [which Matz
and Dawson did - Officer Matz admitted unequivocally (Oct 31 42:14) that "Mr. Palaschak and Miss Jobin
were not free to leave" and Jessica Jobin testified that she felt she was not free to leave (Nov 4 8:27)] but
NOT justify a full scale search of the occupants of the premises." -Socey Officer Dawson was threatening
to do something that she could not legally do - namely, to find the LSD - presumably by searching the premises
or the occupants. Jessica Jobin's surrender of the LSD was NOT consensual - and the prosecution bears the
burden of proving that it was consensual - which they cannot possibly do given the admission of Officer Dawson
that she threatened to "FIND IT ANYWAY" (Oct 31, page 56, line 11).
"A warrantless entry or search must be proportional to the exigency excusing the warrant requirement." -
13
Socey. In Palaschak's case the exigency was minimal. At best, all that was justified was a brief inquiry.
However, in Palaschak's situation even an intrusion to that degree was a violation of Palaschak's privacy rights.
The police simply don't ask to enter a private room where 2 adults have imbibed and there is speculation that
they may get amorous - or not. Mapp sets a pertinent standard in that area. See Mapp discussion herein.
Jessica Jobin cannot be faulted for answering the door; and Jessica Jobin need not subject herself to an
unlawful search in order to secure protection the exclusionary rule - the mere threat of an unlawful search
precludes the voluntariness of the surrender.
The fact that Officers Dawson and Matz violated the privacy rights of Palaschak and Jobin in 4 ways (
1st at the outer door; 2nd at the inner door; 3rd by not departing upon extinguishment of the exigency; and 4th by
demanding LSD under threat of an unlawful search) bears upon the flagrancy of the official misconduct - and that
in turn is relevant to the voluntariness of the surrender of the LSD according to the US Supreme Court in Brown
v Illinois (1975) 422 US 590 at 604, 45 L Ed 2d 416 at 427, 95 S Ct 2254. The courts language in Brown rings
a bell in Palaschak's case and the similarity can be seen in the following side-by-side comparison:
BROWN v ILLINOIS PEOPLE v PALASCHAK
Police arrested Brown for suspicion of murder at his
apartment.
Jessica Jobin and Palaschak were detained in their
private office for suspicion of drug violations.
Police Mirandized Brown immediately. Police Mirandized Jessica Jobin on the way to the
police station. There is no evidence that Palaschak
was ever Mirandized.
Police obtained incriminating admissions from
Brown.
Police obtained incriminating admissions (that she
intended to sell the remaining LSD) from Jessica
Jobin - which they used to pressure Jobin into
testifying against Palaschak.
The US Supreme Court: 45 L Ed 2d 427: "The
temporal proximity of the arrest and the confession,
the presence of intervening circumstances, and
particularly, the purpose and flagrancy of the official
misconduct are all relevant. The voluntariness of
the statement is a threshold requirement. And the
burden of showing admissibility rests, of course, on
the prosecution."
Jessica Jobin's incriminating surrender was within
minutes of the police intrusion. It was obtained after
an illegal detention when Officer Matz had "secured"
the area. Officer Matz admitted unequivocally (Oct
31 42:14) that "Mr. Palaschak and Miss Jobin
were not free to leave". Jessica Jobin (Nov 4
8:27) testified that she felt that she was not free to
leave Jessica felt that she was not free to leave.
Therefore she was detained. She was under the
influence of a suggestibility enhancer; the police
exploited her vulnerability. The police separated
suspects Palaschak and Jobin and questioned them
separately. From the onset, the questions to
Jessica Jobin were about drugs (Oct 31 37:10 "I
asked her if any drugs were being used in the
office") which demonstrates the pretextual nature of
the concern about rape.
The Supreme Court: 45 L Ed 2d at 428: "In its
essentials, [Brown's] situation is remarkably like that
of James Wah [Blackie] Toy in Wong Sun. We
Palaschak's situation is remarkably like that of
Blackie Toy.
Palaschak has standing here to challenge Jessica
14
could hold Brown's first statement admissible only if
we overrule Wong Sun. We decline to do so. And
the 2nd statement was clearly the result and the fruit
of the 1st."
Jobin's surrender of the LSD just as Blackie Toy had
standing to challenge the admissibility of the drugs
surrendered by Johnny Yee as discussed at page
26. Jessica Jobin's subsequent statement at the
police station (the statement being that Jessica
thought about selling the remaining LSD) followed
from the first statement and was made without
intervening attenuating facts.
The US Supreme Court:45 L Ed 2d 428: "The
illegality here, moreover,had a quality of
purposefulness. The impropriety of the arrest was
obvious; awareness of that fact was virtually
conceded by the 2 detectives when they repeatedly
acknowledged, in their testimony, that the purpose
of their action was 'for investigation' or for
'questioning'."
The investigation at Palaschak's office had a
purposefulness. The desk officer Cindy Turner
volunteered Palaschak's name before being
informed by the informant. "Let me guess. Is it
Palaschak?" (Oct 31 15:18). Officer Matz discussed
the case with desk officer Turner for 5 minutes (Oct
31 30:42). The dispatch code was "narcotics" on the
police log. Officer Matz's true concern was "a
possibility that there was drugs being used in
the office" (Oct 31 49:11). Officer Matz then
discussed the case with Officer Dawson (Oct 31
30:25) for 2 or 3 minutes (Oct 31 45:23). Only then
did they go up the elevator to Palaschak's office - 30
to 45 minutes after the report (Oct 31 45:10) - this
is not consistent with exigency; this is
consistent with trying to find a plan. They
surveilled the situation by listening at the inner door.
(Oct 31 33:6) They promptly separated the 2
suspects, Palaschak, and Jobin. (Oct 31 35:17).
They immediately questioned Jobin and Palaschak
about drugs (Oct 31 37:9).
"The arrest, both in design and in execution, was
investigatory. The detectives embarked upon the
expedition for evidence in the hope that
something might turn up.”
The detention in design and execution was a pursuit
of drugs. Officers Matz and Dawson embarked
upon the expedition for evidence in the hope
that something might turn up. When Dawson and
Matz reached the point where they could no longer
carry on the facade of caring for Jessica Jobin's
rape, Dawson simply ordered Jobin to produce the
LSD and motivated Jobin by unlawfully threatening
to "Find it anyway" (in Dawson's own admission on
Oct 31, 1991 56:11) or "Tear this place apart" (in the
words of Jessica Jobin's testimony at (Nov 4 5:23)
and (RT 150:15) regarding Dawson's threat).
Issue #3.0: WONG SUN ANALOGY. SIMILAR SITUATION. DETERMINATIVE. The suppression of the heroin in
Blackie Toy's trial was based on a factual situation so similar to Palaschak's that the same result is compelled -
suppression.The similarity between Palaschak's case and that of Wong Sun (1963) 371 US 471, 9 L Ed 2d 441,
83 S Ct 407 is so strong that it is inconceivable that Judge McNally could reach an opposite conclusion - but
defense counsel inadvertently failed to argue Wong Sun in the suppression motion.
15
WONG SUN PALASCHAK
Untested informant - Hom Way. Untested informant - Melissa Schwentner.
Informant does not tell police the true name of the
defendant - only that his nickname is Blackie Toy
and he runs a laundry somewhere on Leavenworth
street.
Schwentner does not even tell police Palaschak's
name - just that a lawyer and his secretary are
under the influence of LSD - and police guess
Palaschak's name.
Person caught with no drugs - Blackie Toy Person caught with no drugs - Palaschak.
Here is the key to making this analogy
understandable: Blackie Toy told the police
about Johnny Yee who in turn provided
evidence that was ultimately used again Blackie
Toy - but the Supreme Court of the United
States ruled that this evidence was ultimately
obtained in violation of Blacky Toys rights -
even though an argument was made that the
violation of Blackie rights to attenuated by being
too remote in time and space. However,
common sense tells us that logically the
evidence would foreseeably come from this
violation of Blackie Toy’s rights - and
conversely the evidence would never have come
but for the violation of Blackie Toy’s rights.
Keeping in mind that LSD is a truth serum and
an empathogen - a drug that makes you more
friendly and cooperative - police violated
Palaschak rights even though he possessed no
drugs by tricking him into thinking that he was
sick and then convincing Palaschak to tell the
police who gave him the LSD. Palaschak told
the police that he got the drugs from Jessica. At
the suppression motion prosecutor Gibbons
argued that Palaschak had no standing to
contest the seizure from Jessica’s purse.
Although Palaschak had researched Wong Sun
prior to the hearing and prepared a written brief
he inadvertently omitted Wong Sun from the
written brief. Judge McNally mistakenly agreed
with the prosecutions contention that Palaschak
had no standing. Palaschak’s Attorney Steve
Pell argued the logic well but since Palaschak
had done the research and omitted Wong Sun,
Pell was at a loss to cite this persuassive
authority - but the defense generally does not
prepare a brief in advance and such issues are
generally argued on appeal. Palaschak
prepared for appeal but appointed appellate
lawyer Dolge wilfully nelglected Wong Sun and
30 other issues. Also, the fact of Palaschak’s
having told the police that he received the LSD
from Jobin is nowhere in the record until
Palaschak’s Habeas Corpus Motion after the
California Supreme court adverse ruling -
although Palaschak demanded that appellate
counsel Dolge and appellage Counsel Durfee do
a writ of Habeas Corpus in order to supplement
the trial record. At the time of trial Palaschak’s
counsel Pell was not certain if Palaschak could
testify at the suppression hearing and then
assert his 5th amendment privilege at trial. In
retrospect we know that indeed one can testify
at the suppression hearing and then refuse at
trial. Nonetheless a prudent choice would be to
decline in this situation. Palaschak’s statement
to the police is not essential to the finding of
cause to suppress the evidence but it does
make the analogy more striking - and this
16
should be no surprise because the ferreting of
evidence is an age old concept and so is the
questioning of one person to use the evidence
against another until the police get the person
that they want and then choose whom they will
give immuity to.
Person caught with drugs - Johnny Yee Person caught with drugs - Jessica Jobin
2 am Hom way tells police that he bought an ounce
of heroin the night before from Blackie Toy - at
least he alleged that some crime had been
committed
4:45 pm Melissa Schwentner tells police that
Palaschak and Jessica Jobin have consumed LSD
and that Palaschak might sexually assault Jessica -
not an allegation that a crime had occurred, that
a crime was occurring or that a crime probably
would occur - mere speculation that 2 adults
might get amorous - or might not. As to what is
required for probable cause in a narcotics arrest
- particularly where the probable cause relates
not to the past, or the present but rather to
speculation about the future, the Draper case
(cite) and the annotation at (3 L Ed 2d) indicate
that activity equally consistent with LEGAL
future activity is not sufficient probable cause.
Clearly Palaschak and Jobin could just as easily
have continued their party - which they would
have. By comparison, in Draper the suspect
was reported to be boarding a train at a certain
time having made a round trip from Denver to
Chicago by train to pick up 3 ounces of heroin
and that he would be returning the morning of
September 8 or 9 - which constituted reasonable
grounds not only that a crime had already
occurred (Draper was reported to have supplied
heroin already) but that one was occurring at
the present time (purchasing drugs) and would
occur in the future also (when Draper returned
with the drugs). By comparison, Melissa
Schwentner did not allege that there were any
drugs on the premises - or that any crime had
been committed in the past, was presently being
committed, or was likely to be committed in the
future.
No search warrant was sought. No search warrant was sought.
6 am Police arrive at Blackie Toy's place of work.
Closed. Too early.
5:20 pm Police arrive at Palaschak's place of work. Closed. Too late.
Blackie Toy is there anyway; he lives upstairs. Palaschak is there anyway; he is having a private birthday party.
Page 17
Police came to the door. Some hid and one rang the
doorbell under the pretext of picking up laundry and
cleaning.
Police entered the outer door, listened at the inner
door (Oct 31 33:6) and used the pretext of checking
up on welfare of Jessica Jobin and Palaschak. (Oct
31 35:2) Matz: "Is everything all right?" When
Jessica assured him that "everything was all right"
(Oct 31 37:5), Matz continued to investigate,
thereby showing that his true purpose was as he
admitted in twice in court (Oct 31 43:12)
investigating "who might be using drugs as
opposed to ... investigate[ing] a sexual assault".
Matz testified that his concern was (Oct 31
49:11)"The fact that there's a possibility that
there was drugs being used in the office."
Blackie Toy Ran. This was a substantial reason
that the dissent cited attempt to justify police
intrusion.
Palaschak and Jobin, of course, did not run. Jobin
objected to the intrusion as strongly as advisable
under the circumstances. Dawson testified that
Palaschak "May have" objected saying "We have no
idea why you're here" (Oct 31 55:24). Officer Matz
admitted that Jobin protested: "What's going on
here? Is there something wrong?" (Oct 31 35:6) and
again she protested "Is there a problem?" (Oct 31
35:25).
Recent experience shows that extreme caution must be used when dealing with police when one is a purported
drug user. Attorney George Eskin represented the family of a 16 year old on LSD who died as a result of
Ventura police over-reacting to the report of LSD use and shoving a knee in his back at the hospital until he
stopped breathing. In October 1992 Los Angeles Sheriff Deputy Gary Spencer shot and killed rancher Donald
Scott in the rancher's bedroom in his secluded $5 million Trail's End ranch which straddles the Ventura/Los
Angeles county line near Malibu. Ventura County District Attorney Michael Bradbury said that the police lied to
secure the search warrant alleging marijuana cultivation in order to seize the property under forfeiture laws. No
marijuana was growing. Scott is dead because he was surprised and resisted in his own bedroom.
WONG SUN CASE PALASCHAK CASE
Police follow Blackie Toy as Blackie Toy runs to his
nightstand drawer and reaches in the drawer. Police
pull his hand out of the drawer and find - no drugs.
Police look around Palaschak's office and find - no
drugs.
Blackie Toy says that Johnny Yee "kept about a
piece" (an ounce) of heroin.
Evidence at trial supports our contention that police
could only SPECULATE that Jessica had more LSD
- although the facts at that time were equally
indicative of LEGAL activity - and therefore there
was no probable cause to detain or question
anybody any longer. However, Palaschak post-
California Supreme Court petition for writ of
Habeas Corpus reveals that police questioned
him without benefit of Miranda while he was
under th influence of a truth serum and
empathogen (namely LSD) and Palaschak
answered their question and revealed that he
had received the LSD from Jessica. However,
18
Palaschak in no way implied or stated that Jessica
had any LSD in her possession. Indeed Palaschak
did not know that Jessica had additional LSD in her
purse.
Police then went to the home of Johnny Yee and
confronted him. "After a discussion with agents,
Yee took from the bureau drawer several tubes
containing . . .heroin . . . and surrendered them."
Police then brought Jessica back into the inner
office and confronted her in a manner that was
designed to intimidate and deceive her into
thinking that the police somehow knew that she
had more LSD - capitalizing on her LSD-induced
vulnerability to suggestion -which symptomatic
vulnerability was known to Officer Matz who was an
LSD expert with 24 years experience, was a former
teacher at the FBI academy, with DEA experience,
and much experience with LSD. (CT 249, 250).
Officer Dawson coerced Jessica at this point by
telling Jessica Jobin that Dawson "would find it
anyway" (Oct 31 56:11). Dawson's admission is
consistent with the testimony of Jessica Jobin
(Nov 4 5:23) and again at (RT 150:15) who
testified twice that Dawson said that Dawson
would "tear this place apart if you do not give us
the LSD". At this point Jessica Jobin went to her
purse and surrendered a small piece of blotter paper
marked off into 46 tiny squares each presumably
containing 1 dose of LSD.
There was no warning about rights - Miranda came
3 years later.
Jessica Jobin was not Mirandized until after the
seizure - after her arrest. (Testimony of arresting
officer. RT 298:23). Palaschak was never
Mirandized.
Blackie Toy and Johnny Yee were arraigned and
charged with drug possession.
Palaschak and Jessica Jobin were charged with
drug possession (although Palaschak's arrest being
for PC 647 - drunk in public - was rejected by the
intake deputy district attorney).
3 days later, Toy and Yee were informed of their
rights and interviewed at the police station.
Palaschak was not interviewed later but Jobin was.
Blackie Toy refused to sign the written statement. Prosecution proffered (over defense hearsay
objection RT 304:20) newspaper reporter Gary
Gorman to testify that Palaschak had admitted using
LSD - which is not a crime - and that he obtained it
the afternoon of May 9 (RT 307:17).
Johnny Yee invoked his 5th amendment privilege
not to testify and therefore does not testify against
Blackie Toy.
Jessica Jobin testifies against Palaschak - in a
separate trial, having made a deal to plead guilty to
a lesser charge in exchange for her testimony
against Palaschak. This is a difference - but not a
fatal difference.
Jessica Jobin testified against Palaschak - and her testimony was the only evidence that Palaschak has
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actually possessed LSD - which under penal code section 1111 precludes conviction since Jobin was an
accomplice. ("A conviction cannot be had upon the testimony of an accomplice unless it be
corroborated . . and the corroboration is not sufficient if it merely shows the commission of the offense
[the offense here being "dominion and control" of the LSD] or the circumstances thereof." - Penal Code
section 1111. Although the circumstances are corroborated, only Jobin's testimony is probative on the
issue of whether Palaschak had "dominion and control" over the LSD. Absent Jobin's testimony we
don't know how Palaschak ingested the LSD - by his own hand (as Jobin testified) or by Jobin's hand
(like a communion wafer) - or in a drink mixed by Jobin. Melissa Schwentner never did see Palaschak
with any LSD. Melissa mentioned nothing about a birthday card. Melissa testified that she not there
when Palaschak presumably consumed the LSD (RT 196:26). In short she did not see Palaschak exert any
dominion or control over the LSD.
WONG SUN WONG SUN
Prosecution's evidence consists of:
1) Blackie Toy's statement in his bedroom;
Prosecution's evidence consists of:
1) Palaschak's statement in his office regarding his
symptoms - not indicative of a crime;
2) The drugs surrendered by Johnny Yee; 2) The LSD surrendered by Jessica Jobin;
3) Blackie Toy's unsigned confession; 3) Newspaper reporter testimony regarding
Palaschak's admission of having been under the
influence of LSD;
4) Wong Sun's statement; 4) No corollary;
5) No corollary because Johnny Yee did not testify. 5) Testimony of accomplice Jessica Jobin - which is
not ample evidence for conviction pursuant to penal
code 1111 - and which is the fruit of a forbidden
search just as much as the LSD because but for the
finding of the LSD the police would have no
testimony from Jobin because Jobin's testimony was
a result of her deal with the prosecution to reduce
her charge for possession of that LSD that was
found during the illegal search.
Defense asserts that evidence is the fruit of an
illegal search.
Defense asserted that evidence is the fruit of an
illegal search.
Court of appeal cites absence of probable cause for
arrest of Blackie Toy prior to seizure.
Judge McNally should have held that there was
absence of probable cause prior to the seizure -
police should have departed after inquiring as to the
safety of Jessica and having been assured by
Jessica in the absence of Palaschak that Jessica
was okay - even if there was the appearance of LSD
use - because LSD use is not a crime.
Court of appeal held that there was no reasonable
grounds.
Judge McNally should have ruled likewise - and
should have found that the surrender of the LSD
was not consensual any more than the surrender of
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the heroin by Johnny Yee in nearly identical fact
situation.
"Nothing in the circumstances occurring at Toy's
premises that would provide sufficient justification
for his arrest without a warrant."
Nothing in the circumstances occurring at
Palaschak's premises would provide sufficient
justification for arrest without a warrant or 1)
securing of the premises, 2) violating defendant's
privacy despite 3 sentences of objection by Jobin
(Oct 31 35:5, 35:25) and possibly objection by
Palaschak (Oct 31 55:24), 3) confronting Jessica
with the threat "We will find it anyway" (Oct 31
56:11) or, 4) ordering Jessica to surrender the LSD.
It was ludicrous for Judge McNally to conclude that
Jobin would voluntarily of her own free will
surrender drugs that she knew would result in her
arrest. The arrest cannot be justified on the basis of
the LSD; you cannot justify an unlawful search by
what it turns up.
At 9 L Ed2d 451, col. 2 "It is conceded that the
officers made no attempt to obtain a warrant for
Toy's arrest. The simple fact is that on the sparse
information at the officers' command, no arrest
warrant could have issued . . ."
It is conceded that the officers made no attempt to
obtain a warrant for Palaschak's arrest. The simple
fact is that on the sparse information at the officers'
command, no arrest warrant could have issued.
At 9 L Ed2d 451 Col 2 "The arrest warrant
procedure serves to insure that the deliberate,
impartial judgment of a judicial officer will be
interposed between the citizen and the police, to
assess the weight and credibility of the information
which the complaining officer adduces as probable
cause."
Here is the statement on which the arrest warrant
would have to be based: (Oct 31, page 20, line 1)
Melissa Schwentner: "I told her that, um, I had
worked for an attorney and that he was frying on
acid at the time and that I was somewhat concerned
because there was another female employee in
there that was practically crying because he wouldn't
leave her alone." "I'm not sure exactly word for word
what I said." (Line 15)
"That, I mean, something was going to happen
because, I mean, she's crying." (Line 19)
As to what was expected to happen:
"Something more of a sexual nature." (Line 22.)
"I have no idea what I exactly said." (Line 26)
Police did not ask her what was going on. "No, they
didn't ask me." (page 14, line 20) This may indicate
that the police had their own agenda regarding
Palaschak since they volunteered his name before
Schwentner told them. "Let me guess, is it
Palaschak?" were the words the desk officer used
as testified by Schwentner (Oct 31, page 15, line
18).
"I just told her [desk officer] something like that,
that, you know, he asked her to stay late and she
really didn't want to." (Oct 31, page 16, lines 24-25).
A warrant could not have issued.
9 L Ed 2d 452 "The government contends, however,
that any defects in the information . . . were
The prosecution argued at the suppression motion
that regardless of whether there was probable
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remedied by events which occurred after they
arrived."
cause, the events afterward justify admission of the
LSD.
"an officer must state his authority and his purpose
at the threshold . . .And before Toy fled the officer
never adequately dispelled the misimpression
engendered by his own ruse."
The officers stated that they were concerned for the
welfare of defendants - and this was a ruse which
engendered cooperation - as if 2 people in the
enhanced state of vulnerability from a suggestibility
enhancer are going to put up resistance to armed
police - AND ARE CITIZENS REQUIRED TO
INCUR THE PERIL OF NON-COOPERATION IN
ORDER TO PROTECT THEIR RIGHTS? NO, OF
COURSE NOT. THAT IS WHY WE GO TO
COURT.
9 L Ed 2d at 452-453: "The government claims no . .
. need to rescue a victim in peril"
That remnant of that pretext was dispelled when
Matz took Jessica in the hall and she told Matz "they
had been drinking some champagne and everything
was all right" (Oct 31 37:5).
9 L Ed at 453 "A contrary holding here would mean
that a vague suspicion could be transformed into
probable cause for arrest by reason of ambiguous
conduct which the officers themselves provoked.
That result would have the same essential vice as a
proposition we have consistently rejected - that a
search unlawful at its inception may be validated by
what it turns up. Byars v US 273 US 28, 71 L Ed
520, 47 S Ct 248.
Affirmance of Judge McNally's denial of the
suppression motion would mean that an entry
unlawful at its inception (the entry into the front
door) could be rehabilitated by 1) Jessica Jobin's
acquiescence to armed police at the door; or 2) the
subsequent consent of Jessica Jobin to surrender
the LSD (or have the office torn apart by further
unlawful search). The 4th amendment does not
require the citizen to make such a choice - and
Wong Sun proves it.
Wong Sun 9 L Ed 2d at 453:
In order to make effective the fundamental constitutional guarantees of sanctity
of the home and inviolability of the person, Boyd [citations], this court held nearly a half
a century ago that evidence seized during an unlawful search could not constitute proof
against the victim of the search. Weeks [citations]. The exclusionary prohibition
extends as well to the indirect as the direct products of such invasions. Silverthorne
[citations]. Mr Holmes, speaking for the court in that case, in holding that the government
might not make use of information obtained during an unlawful search to subpena from
the victims the very documents illegally viewed, expressed succinctly the policy of the
broad exclusionary rule: "The essence of a provision for bidding the acquisition of
evidence in a certain way is that not merely evidence so acquired shall not be used
before the court but that it shall not be used at all. Of course this does not mean that the
facts thus obtained become sacred and inaccessible. If knowledge the them is gained
from an independent source they may be proved like any others, but the knowledge
gained by the government's own wrong cannot be use by it in the way proposed."
[Citation]
The exclusionary rule has traditionally barred from trial physical, tangible
materials obtained either during of as a direct result of an unlawful invasion. It
follows from our holding in Silverthorne [citation] that the 4th amendment may protect
against the overhearing of verbal statements as well as against the more tradition
seizure of "papers and effects." Similarly, testimony as to matters observed during
an unlawful invasion has been excluded in order to enforce the basic
constitutional policies. McGinnis v US (CA1 NH) 227 F2d 598. Thus verbal
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evidence which derives so immediately from an unlawful entry [such as the
testimony of accomplice Jessica Jobin which was given in exchange for immunity
from felony prosecution which depended on the fruits of this same unlawful
invasion of Palaschak's office] and an unauthorized arrest as the officers' action in the
present case is not less the "fruit" of official illegality that the more common tangible
fruits of the unwarranted intrusion See Nueslein v District of Columbia.
Nueslein is discussed at page 24. The Supreme Court's footnote 12 is of substantial import and right on point:
" . . . For illustrative situations where a voluntary act of the accused has been held insufficient to
cure the otherwise unlawful acquisition of evidence, see.. US v Watson (DC Cal) 189 F Supp
776 (excluding narcotics voluntarily surrendered by accused in the course of an unauthorized
search)." - footnote 12 of Wong Sun.
The facts in Watson are very similar to the instant facts and prove that the LSD must be suppressed even if
Judge McNally's finding of no coercion is upheld. In Watson the defendant was in the same apartment as
the subject of a legal arrest. When confronted by police Watson voluntarily admitted that drugs were in the
apartment and surrendered the drugs. To enhance the similarity of Palaschak's case and Watson's the following
side-by-side comparison is offered:
WATSON CASE
From Watson 189 F Supp 776 at 778 first
paragraph: "Deputy Sheriff Marvin Love testified
that as he entered the apartment he saw the
defendant Watson in the kitchen of the apartment
and immediately went over to him. "
PALASCHAK'S CASE
From Oct 31, 1991 suppression hearing, page 54,
lines 5-8. Officer Dawson testified that Officer Matz
returned after questioning Jessica Jobin in the hall
and brought Jessica with him into the inner office
where Dawson had been talking with Palaschak.
"He asked Watson if there were any narcotics in the
apartment."
(Oct 31, page 54, lines 9-11 and page 56 lines 11-
12) Officer Dawson then asked Jessica Jobin to
give Dawson any remaining LSD - although at that
point Dawson could only speculate that there was
any remaining LSD. Dawson admitted on cross
examination that she coerced Jobin into
surrendering the LSD by telling Jobin that she
(Dawson) would "find it anyway" (Oct 31 56:11).
"He further testified that defendant admitted
narcotics were there and that a search of the
apartment would disclose them; that defendant
voluntarily reached into a cupboard under the
kitchen sink and removed therefrom a can
containing marihuana which he voluntarily delivered
to Officer Love."
Officer Dawson testified (Oct 31, 1991, page 54,
lines 16-18): "When I asked her she walked over to
a table and picked up a purse and retrieved an
object which she handed to me which wound up
being the LSD." (Officer Dawson had just denied
coercing Jessica Jobin - and denial that she later
recanted on cross-examination. In a Freudian slip
she says at 54:18 "I don't believe exactly what she
said" (apparently subconsciously thinking about just
having told less than the whole truth) instead of "I
don't recall.")
Watson proves that it matters little that accomplice Jobin precluded a threatened search - the surrender was a
product of unlawful coercion. In the case of defendants Palaschak and Jobin who were under the influence of a
suggestibility enhancer, the degree of coercion required to produce evidence would be minimal since the
defendants were chemically predisposed to cooperate. The question not answered by Watson is whether
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Palaschak can object to the use of Jobin's statement at Palaschak's trial. Wong Sun furnishes the answer.
Jessica Jobin's statement and the LSD are inadmissible.
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