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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.

Foot note 1from previous page: Palaschak on 13 Dec 93 wrote to the Court of Appeal in San Jose for information on People v

Harden, Attorney Stephen Ross a case wherein drugs were suppressed where they had been

confiscated from a lawyer’s office in even less egregious circumstances. Palaschak received no reply

Issue #7.1: Warrant is required to enter private law office. Regardless of whether there was probable

cause to arrest, a warrant was required to effectuate an arrest at Palaschak's office - or to enter the front

door for any other purpose and therefore the entry (prior to listening at the inner door) and everything

stemming from it should have been suppressed. Payton v New York (1980) 445 US 573, 63 L Ed 2d

639, 100 S Ct 1371. Warrantless nonconsentual entry into suspect’s home even to make a routine

felony arrest violates 4th amendment. In People v Attorney Stephen Ross Harden drugs seized from

a lawyer’s office were suppressed1. "The businessman, like the occupant of a residence has a

constitutional right to go about his business free from unreasonable official entries upon his private

commercial property." Dow Chemical v US (1986) 476 US 235, 90 L Ed 3d 235, 106 S Ct 1825. At (Oct

31 at 31:20-32:2) Officer Matz testified that he tried the outer door and, finding it unlocked, entered -

which is a bad habit that many people have - presuming that they can enter an office after 5 (or any

time) simply because the door is unlocked - and police certainly would not do that at a private residence -

and they broke the law in doing it at Palaschak's office. The Magna Carta commands:

"The King will not appoint any judges, constables, sheriffs or bailiffs, except such as know the

"An occupant of an interior office not open to the general public has a right to be free from

warrantless arrest therein absent consent or exigent circumstances." - People v Lee (1986) 186

The qualification "interior" does not mean that only Palaschak's inner office was protected. Palaschak's

outer office was the functional equivalent of the inner office in Lee because Attorney Lee was one of

several attorneys sharing a common area. Palaschak's outer office door was kept locked on the day of

the police intrusion, May 8, 1991 (Nov 4 3:20). The prosecution did not prove or attempt to prove that

Palaschak's office was open to the general public. Judge McNally's allusion to a "public waiting room"

The officers could have simply telephoned. Besides, after they did satisfy themselves as to

Jessica's safety, they should have left. See ALR Fed 6:724 What constitutes "reasonable grounds"

justifying arrest of narcotics suspect without warrant under §104 a of Narcotics Control Act of 1956.

Issue #7.2: Judge McNally erred reversibly (at Nov 4 30:2) in finding that police lawfully entered

Palaschak's outer door. It can be gleaned from the record that police entered the building at 6633

Telephone Road, took the elevator to the 2nd floor and found suite #216 which was occupied by

Palaschak and had his name on the door. This door with his name on it is called the "outer door"

throughout the trial but it is the functional equivalent of the "interior" in Lee. Judge McNally said (Nov 4

30:3) "It was not unreasonable, in my opinion, to turn the doorknob. The public waiting room was open to

2For centuries police have relied on confessions to prosecute individuals accused of crimes. At

common law, any confession, even one obtained by physical torture, could be entered into evidence

against a defendant. But beginning in the 18th and 19th centuries, courts started to establish rules that

limit the excess of police practice - the first formal rule of exclusion having been stated in 1783 in King v

Warickshall (K.B. 1783) 168 Eng Rep 234, L. Leach Cr. Cases 263. Since 1783 there has been

considerable debate as to what constitutes "police interrogation" Taken from: Confusing the 5th

amendment with the 6th: Lower Court Misapplication of the Innis Definition of Interrogation, 87

Mich L Rev 1073. Modern police methods no longer rely on the NIGHTSTICK STANDARD alluded to by

Judge McNally (Nov 4, page 31, line 22) in denying the suppression motion herein. Rather, police

employ more subtle forms of interrogation - psychological ploys and techniques - but these methods also

their turning another doorknob." McNally is quite mixed up and does not recall the evidence. First, the

police had no right to even try the outer doorknob. They should have knocked on the door with

Palaschak's name on it. Whether they had a right to enter the building and ride the elevator is not an

issue that Palaschak is litigating. However, Palaschak is adamant about his front door - the same as we

all are about the front door to our home - and Lee says that we are entitled in a private office, to the

same protection. Judge McNally's obvious mistake makes de novo review the only practical alternative

in this case - well, okay, we could petition for a writ of coram nobis to Judge McNally, but it appears that

his opinion did not depend on whether it was an outer or inner door; He thought it was a public place, a

"public waiting room" - and indeed if this had been the bus station, the waiting room at a restaurant, the

waiting room at the garage, or any place open to the public, then McNally would have been correct, but

it was not a public waiting room - It was Palaschak's office - and it was generally kept locked that

day (Nov 4 3:20) but one need not lock a door to enjoy the privacy of the 4th amendment!

Issue #8 The gun or nightstick standard - (Nov 4 31:22) and (Nov 4 8:14). Judge McNally

used the nightstick standard - the wrong standard in determining the amount of police

coercion constitutionally permissible to extract a confession2 and produce inculpating

"[T]th 4th and 14th amendments require that a consent NOT BE COERCED, BY EXPLICIT OR

Judge McNally reveals his standard at the motion to suppress (Nov 4 8:14 to 8:18):

Judge McNally: "Let's suppose that some awesome display of force was used in getting

her to step outside such as pointing a cocked .45 at her head, one could argue that

duress carries over into whatever occurred after that. That is the only basis on which it

[Jessica's feeling that she could not refuse their orders] could possibly have any

Issue #9 Even though probable cause would not have justified warrantless intrusion, even

3See L Ed 2d 22:909 Physical examination...or tests upon suspect or accused as violative

probable cause was clearly lacking in Palaschak’s case. See What constitutes “probable

cause” or “reasonable grounds” justifying arrest of narcotics suspect without warrant -

federal cases 3 L Ed 2d 327 an annotation to Draper v U.S. (Jan 1959) 358 US 307, 3 L Ed 2d

327, 79 S Ct 329. As to the issue of whether police knew that Jobin possessed LSD, they could

not have known because the temp merely told the police that defendants had told her that they

ate LSD. The police merely speculated that there might be additional LSD to be found. This

constitutes “mere speculation and guesswork” - which according to U.S. v Clark (1939, DC

Issue #10 Officer Matz's tactic of WATER DEPRIVATION on Palaschak constitutes unlawful coercion -

and Matz did not have the right to administer field sobriety tests anyway; the result was

Testimony of Officer Matz before grand jury: 78:16: "he [Palaschak] wanted a drink of water, which we

Issue #10.1: Matz had no probable cause to give Palaschak a field sobriety test to determine whether Palaschak

was under the influence of LSD because that is not a crime in California. The test should have been preceded by

Miranda warning3 (not to mention a search warrant) - especially since Palaschak was hypersuggestibly

disadvantaged - and Matz knew well of hypersuggestibility since Matz is a former DEA agent and FBI instructor -

and a nice guy. The FST was prejudicial because it facilitated the police to intimidate and bluff Jessica Jobin

Question: Prosecutor Gibbons to Officer Matz (Grand Jury transcript 77:18): "And did you -- did you also

examine Mr. Palaschak for the purposes of trying to determine if he was under the influence of LSD?"

Answer: "I did to the - - Number one, I asked him to stand up because I wanted to find out what his gait

In fact Palaschak had a right to be unsteady on his feet in the privacy of his own office. He had a right to be

blind staggering drunk - as long as he was not in public. Even on the highway where we have the exigency of a

fleeting motor vehicle we nonetheless generally require some probable cause for a traffic stop and FST.

Issue #11 Perception of subject - not police - determines coercion. Judge McNally erred. McNally

obviously remembered that Officer Matz admitted unequivocally (Oct 31 42:14) that "Mr.

Palaschak and Miss Jobin were not free to leave". Judge McNally therefore said that it

makes no difference because he did not articulate his intention. However, McNally obviously

forgot or ignored the testimony of Jessica Jobin (Nov 4 8:27) saying that she felt that she was

not free to leave. Judge McNally discounted the testimony of Jobin ("[Dawson said] We're going

to tear this place apart if you do not give us the LSD" (Nov 4 5:23) which testimony was

corroborated by the admission of Officer Dawson that indeed Dawson had threatened to

"find it [the LSD] anyway" (Oct 31 56:11). Courts are mandated to consider "the suspects's

4James 19 C3d 99: Headnote 2: "The prosecution has the burden of proving that the defendant's

manifestation of consent was the product of defendant's free will and not a mere submission to an

express or implied assertion of authority." Headnote 4:"In reviewing a trial court's determination of a

motion to suppress, the question of the voluntariness of the defendant's consent to a search of his

premises is to be determined in the first instance by the trier of fact. [query the legal fiction in not

presenting this issue to the jury] AT that stage . . . the power to judge credibility of witnesses, resolve

conflicts in testimony, weigh evidence, and draw factual inferences, is vested in the trial court. On

appeal all presumptions favor the proper exercise of that power and the trial court's finding -

whether express or implied - must be upheld if supported by substantial evidence." (at 101) But

in Palaschak's case it appears that Judge McNally either did not hear or failed to remember what

he heard. Both Jessica Jobin and Officer Dawson testified that Jobin threatened Dawson with a

search anyway. The LSD surrender was not a product of free will. Dawson admitted threatening

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

[Jobin's] perceptions, and not the intent of the officers". Innis 446 US at 301.

Issue #12 Standard of review: Probable cause is a mixed question of law and fact in which the legal

issues predominate and is therefore subject to DE NOVO REVIEW. US v Hoyos (CA 9th

Issue #12.1: Standard of Review re: Consent: Upheld if supported by substantial evidence. People v

James (1977) 19 C3d 99.4 Judge McNally's denial of the suppression motion must be reversed whether one

uses the weaker California standard of James or the more logical standards of Wong Sun and Hoyos (do novo).

Issue #13 Watson voluntary drug surrender. Even if the LSD is deemed to have been surrendered

voluntarily, and even if entry to the inner office is deemed lawful, the LSD and Jessica Jobin's

testimony must nonetheless be suppressed because 1) the police intruded in Palaschak's private

office long beyond the time when it was clear that Jessica Jobin was not in peril; and 2) under

Watson even drugs voluntarily surrendered during an illegal intrusion must be suppressed

regardless of the voluntariness of the surrender. Watson as applied to Palaschak is thoroughly

As a practical matter, Jessica Jobin cannot be faulted for not having taken a barrister's approach to

Officer Dawson's demand for the LSD that Dawson speculated that Jobin had. Jessica Jobin was only 18 years

old - and under the influence of a suggestibility enhancer tested as a truth serum by the US Department of

Defense. She cannot be deemed to have waived her rights simply because she succumbed to undue pressure in

a vulnerable state and did what she thought was expected of her. The comment of Lord Devlin cited in footnote

"It is probable that even today, when there is much less ignorance about these matters than

WORSE FOR YOU IF YOU DO NOT." Devlin, The Criminal Prosecution in England (1958), 32.

Issue #14 Chadwick issue. Regardless of reasonable grounds or probable cause, a search warrant was

5"The enumeration in the Constitution, of certain rights, shall not be construed to deny or

disparage others retained by the people." - Complete text of the 9th amendment to the U.S. Constitution.

needed to subject Palaschak and Jessica Jobin to the demand for LSD; a neutral and detached

magistrate is what the 4th amendment requires to prevent just what happened - trampling on

privacy rights in over-zealous drug hysteria. Palaschak argued Chadwick in his suppression

motion and the adverse ruling of Judge McNally should be reversed by this court of appeal. In

Chadwick the US Supreme Court in 1977 affirmed the suppression of a locked footlocker that

was seized from the open trunk of a parked car outside a train terminal during the arrest of drug

suspects and opened 1.5 hours later at the police station without a warrant. The police had no

longer any exigency justifying the warrantless intrusion - even with probable cause. This

situation is similar to that of the police in Palaschak's office after Jessica had told them

that she was okay. The exigency was no longer there. They had not right to order

Jessica to surrender the LSD. The police could have obtained a warrant at that point -

and in fact should have obtained a warrant before entering the outer door - but that issue

In Payton v New York (1979) 445 US 573, 63 L Ed 2d 639, 100 S Ct 1371 the US Supreme Court

reversed a murder conviction because even though the police had probable cause when they broke open the

door and found incriminating rifle shells in the home, the police nonetheless should have obtained a warrant first.

In Palaschak's case, there was not even probable cause. There was not sufficient exigency to justify entry

through the outer door. There was not sufficient exigency to enter the inner door under the color of authority.

There was absolutely no exigency to stay once Jessica Jobin said that she was okay. But even if there had been

probable cause in the eyes of the police, Chadwick and Payton hold that they should have obtained a warrant.

Issue #15 Privacy. Penumbra Doctrine. Inalienable Rights. California Constitution. Article 1.1.

Rights include the private harmless use proscribed drugs such as birth control pills (Griswold v

Connecticut) and other widely used pills such as LSD. The California Constitution states: "All

people are by nature free and independent . . . and have inalienable rights . . . [including

HAPPINESS AND PRIVACY." California Constitution, Article 1, section 1. We have the right

under the US Constitution, and under our Constitutional heritage including the Magna Carta

(pertinent portions of which are reprinted in the tables). See The California marijuana

possession statute: an infringement on the right of privacy of other peripheral

constitutional rights? Hastings Law Journal 19:758 1967/68. Palaschak's right to privacy and

Issue #15.1: Federal Privacy Right. As enunciated in Eisenstadt v Baird and Griswold v Connecticut (1965)

381 US 479 and the 9th amendment5 constitutional protection extends to rights not specifically enumerated on

the constitution. In Griswold the court found Griswold had the right provide birth control advice. Implicitly the

court finds that Griswold's patients have the right take drugs in private despite an unambiguous statutory

proscription against taking these drugs which are birth control pills. The test of legislation in the area of privacy

is the STRICT SCRUTINY TEST - not RATIONAL BASIS TESTING. A "compelling state interest" and "grave

Ours is a system of limited government. The bill of rights is redundant because of the limitation of the

constitution and because almost all the rights in the bill of rights are specifically enumerated in the Magna Carta,

the Mayflower Compact, the Articles of Confederation, and the various other entitling events memorialized by

these and other ancient documents. The right to privacy is that buffer that prevents litigation in the grey area -

between the state's right to intrude and the individual's right to be left alone - even if the citizen is doing

something that may - or may not - be illegal - like the pornography in Stanley's bedroom - and the LSD which is

legal to use but not legal to possess. The very purpose of the buffer is to provide protection against scrutiny - to

err on the side of privacy. Another purpose of this buffer is to prevent the courts from being clogged with cases

where the law is in flux - as are the drug laws in question. Also, the buffer protects us where the law is evolving

and the activity is legal but the police don't know that it is legal. Palaschak's activities on the day of the raid at

his office were in the penumbra of protection of several articles of the Bill of Rights: 1) the right to privacy, 2) the

1st amendment the right to acquire knowledge, 3) the right of free association, and others. The totality of the raid

at Palaschak's office cries out for vindication of Palaschak's right to privacy by this court of appeal. In 1928

Justice Brandeis spoke about privacy, the pursuit of happiness, emotions, sensations, and pleasure as follows:

"The protection guaranteed by the Amendments is much broader in scope. The makers of our

Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the

significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of

the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect

Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as

against the government, the right to be let alone - the most comprehensive of right and the right most

valued by civilized men." Justice Brandeis dissenting in Olmstead v US 72 L Ed @956.

The 4th amendment is to be liberally construed to protect our liberties. More specifically:

"In would not be possible to add to the emphasis with which the framers of our Constitution and

this court (In Boyd...Weeks...Silverthorne Lumber Co...) have declared the importance to

political liberty and to the welfare of our country of the due observance of the rights guaranteed

under the Constitution by these 2 Amendments [the 4th and 5th]. The effect of the decisions

cited is: that such rights are declared to be indispensable to the "full enjoyment of personal

security, personal liberty, and private property;" that they are to be regarded as of the very

essence of constitutional liberty; and that the guaranty of them is as important and as imperative

as are the guaranties of the other fundamental rights of the individual citizen, - the right to trial by

jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly decided that

these Amendments should receive a liberal construction, so as to prevent stealthy

imperceptible practice of courts, or by well-intentioned but mistakenly over-zealous

In the spirit of these decision we must deal with the questions before us." Gouled v US

Issue #15.2: Palaschak and Jobin had the same quasi procreational and privacy rights as a married couple in

6As of October 1993 Ravin has been cited in the following cases, most recent listed first:

j(dissent) 846 P2d 648 (warrantless phone tap upheld in re marijuana in Wyoming), 963 F2d 623, Allam

v Alaska 830 P2d 438 (discrimination against 18 year olds in marijuana possession statute upheld),

Burner 829 P2d 841 (selling alcohol is a felony in some Alaska cities), Gonzalez (Alaska immunity

statute) 825 P2d 933, and approximately 50 other cases. Alaska v Erickson 574 P2d 1 (Although

private marijuana use is protected by Alaska privacy clause in constitution, private cocaine use is not),. .

. 50 other cases cited . . . sole California case: Cal v Davis (1979 6 consolidated cases) 92 CA3d 250

(California privacy right does not yet include right to use cocaine in private - but this lower court decision

seems to violate stare decisis in that it erodes the privacy rights defines in Eistenstadt v Baird and

7"The right of the people to privacy is recognized and shall not be infringed. The legislature shall

implement this section." - Alaska's privacy clause which is adequate to forbid conviction for private

marijuana use. Compare to our own privacy clause which is THE VERY FIRST CLAUSE IN OUR

CALIFORNIA CONSTITUTION: "1.1 INALIENABLE RIGHTS. All people are by nature free and

independent and have inalienable rights. Among these are enjoying and defending life and liberty,

acquiring, possessing, and protecting property, and pursuing and obtaining safety, HAPPINESS, AND

PRIVACY." (Emphasis by Palaschak.) Furthermore, if the rights are indeed inalienable then we do not

need the constitution to give them to us and they cannot be taken away by say, a search term in a

their bedroom (the 4th amendment protect people - not places) - and we would not think of permitting the police

to knock on the bedroom door to see if everything is all right when there is a reasonable alternative (the phone) if

there is really a doubt - and we would not permit the police to stay in the couple's bedroom after they had

indicated that they did not need police protection. Eisendstadt v Baird (1972) 31 L Ed 2d 349, 405 US 438, 92

S Ct 1029 held that Mr. Baird has the standing to assert the procreative rights of other people in successfully

challenging his conviction for personally handing to a woman a package containing the then contraband drug,

contraceptive foam, even though this woman was not in a procreative posture (figuratively speaking) with regard

Issue #15.3: The right UNDER THE PRIVACY CLAUSE OF A SIMILAR STATE CONSTITUTION to private use

of harmless drugs in the home has already been vindicated in Ravin v State (Alaska, 1975) 537 P2d 4946. The

Alaska Supreme court held that the Alaska and US Constitutions both protect the otherwise unlawful use of

marijuana in the home in private. Of course Palaschak’s office was entitled to the same protection as a home.

That issue is discussed elsewhere in this brief. The 4th amendment protect people not places but more

specifically, Palaschak’s office was his own personal private office. Testimony [ __] proved that the doors were

locked on the day of the arrest - except when the snitch departed and left them unlocked. The Alaska

constitution's privacy clause is much weaker than California's based merely on its text7 and therefore Palaschak

contends that the authors of California’s constitution meant something more - specifically, the right to use LSD in

Issue #16 The Age of Aquarius. Societal recognition of the legitimacy of the pursuit of pleasue.

Pleasure is what the LSD statute seeks to proscribe - because the dominant religion in

American condemns pleasure - and enforcement of an LSD proscription founded on this

religious principle is a violation of the ESTABLISHMENT CLAUSE. We are entering the age

of hedonism. Society will eventually overcome its fear of pleasure which is merely fear of the

unknown. Our progress in the direction of hedonism can be seen from economic trends. Each

year spend a smaller portion of our income per capita on fundamental food, clothing, and shelter

- and a proportionately larger share on discretionary income - which includes pursuit of

happiness as we perceive it which for many means a luxurious house and gourmet food - while

Issue #16.1: LSD becomes an active albeit transient part of the central nervous system - and thus a statute

portending to regulate its ingestion is a statute regulating the right to determine WHAT WE SHALL BE - and

also, what we shall perceive - and thus the intrusion is fundamental in many respects.

Issue # Freedom to leave your own house is irrelevant - and besides, they were not free to leave. Judge McNally

"There was nothing said to them which would lead them to believe that they're not free to

He turns the law upon its head. The police unlawfully intrude into Palaschak's office and Judge McNally finds

that there is no constitutional violation because Palaschak is free to leave. The finding by Judge McNally would

be ludicrous if it were not obviously a mistake - and merely supports our contention that he apparently forgot the

facts that he had acquired 5 days earlier. On Oct 31, 1991 Officer Matz testified (Oct 31 42:12) unequivocally

that Palaschak and Jobin were not free to go. Jessica Jobin testified that she felt that she was not (Nov 4 8:27)

Issue #17 KNOCK AND NOTICE VIOLATION. Officer Matz admitted (Oct 31 43:12) that he was

"checking on ... a female who might be using drugs as opposed to ... investigate[ing] a

sexual assault" The entry to Palaschak's office was by stealth and deceit - to wit, the admitted

pretext of concern for Jessica; and was therefore illegal because entry by stealth is as unlawful

as entry by illegal use of force. Gatewood v US (CA DC 1953) 209 F2d 789 - before an officer

can demand entry to a home he must first make known the true cause of his entry. Penal Code

§1531 and Penal Code §844 both require knock and notice of the TRUE CAUSE OF THE

POLICE INTRUSION. Knock and Officers Dawson and Matz lied to Palaschak and Jobin

concerning the true cause of their presence which was in fact a drug pursuit, the concern for

Jessica's welfare being merely a pretext - by Matz's own admission (Oct 31 43:12). The

remedy for violation of the knock notice requirement is suppression of evidence - despite

Proposition 8 - because the remedy is prescribed in federal cases as a remedy for a violation of

the federal right to privacy. Gatewood is very specific about the remedy - and Wong Sun

specifically cites and follows Gatewood in observing that the officer in Wong Sun never did

"dispel his own ruse" - just as Officers Dawson and Matz never did dispel their own ruse - their

supposed concern for Jessica Jobin having been merely a pretext to gain entry that they could

not otherwise have gained. Once again the research trail leads back to the case of Wong Sun.

Issue #18 Pretext vitiates any exigency excuse for no warrant - and police took a half hour to get there

from 2 miles away - not an emergency response. Pretextual urgency vitiates the justification for

intrusion without a warrant - and this includes the intrusion at Palaschak’s outer office door -

before police had even talked to Jessica and Palaschak - and therefore the police could not

have possibly thought that they had consented to entry. The proffered reason for intrusion

without a warrant into Palaschak's outer and inner office was by the admission of Officer Matz

(Oct 31 43:12) pretextual - feigned concern for a future rape victim. The entry into Palaschak's

law office was unreasonable - or at least the detention beyond the time when Jessica Jobin

declared that she was not in danger - because the proffered reason, the concern for Jessica

Jobin, was a pretext for a search for drugs (as admitted by Officer Matz Oct 31 43:12) and as

seen by the police log - which lists the response by police as a narcotics call from the inception).

Pretextual searches justify suppression of the evidence under People v Aguilar (1991) 228 CA

3d 1049, 279 CR 246, discussed in Witkin 2d, pocket update section 2397. In Aguilar police

observed 4 persons place what might have been a stolen television into the trunk of defendant's

car. Police followed the car and made a valid stop when defendant made an illegal turn.

Computer showed driver license suspended. Car was impounded. Inventory revealed stolen tool

chest. Held: the impound was pretextual and the search invalid. Aguilar in turn relies on US v

Hellman (9th Cir 1977) 556 F 2d 442 in which the court gave credence to the officer's testimony

that the impoundment was for "an investigatory police motive" the very same motive that is

obvious from the demand of Officer Dawson to Jessica Jobin that the surrender the LSD. There

can be no other motive than investigation. The pretext of concern for Jessica being "rape[d]"

was dissipated by that time. Furthermore, the police motive is obvious in Dawson's admission

on October 31, 1991 (Oct 31 56:11) that Dawson threatened that Dawson would "Find it

anyway" which can mean nothing other than a threat to search the premises - which is

consistent with Jessica Jobin's testimony (Nov 4 5:23) and again at (RT 150:15) that Dawson

threatened to "tear the place apart" if Jessica did not surrender the suspected LSD.

But even before Officer Dawson demanded the LSD the totality of the circumstances indicate that from

the inception the target of this police investigation was Palaschak whose name was volunteered by the desk

officer. "Let me guess, is it Palaschak?" (Oct 31 15:18). The target crime was drugs. Here are the factors that

1) Officer Matz testified (Oct 31 30:4) that he discussed the case for 5 minutes with the desk officer. One would

not expect even that much delay in a rape prevention situation. Furthermore, although Palaschak's office was

exactly 1.5 driving miles from the police station, response time was 19 to 34 minutes based on dispatch at 5:11

2) Officers Matz and Dawson testified (Oct 31 30:25 and 31 45:23) that they waited several minutes outside the

8My notes from jail indicate that this is a quote from page 1448 of Socey but I don't find that

3) Officers Matz (Oct 31 33:6) and Dawson (Oct 31 56:10) each testified that they listened outside Palaschak's

4) Officer Matz admitted (Oct 31 43:12) that he was "checking on ... a female who might be using drugs

5) Even after Matz took Jessica in the hall and she told Matz "everything was all right" (Oct 31 37:5) Matz

persisted in the investigation - thus dispelling any remaining doubt that this police investigation was about any

There was not a report that a rape was in progress, nor a report that a rape had occurred - merely speculation

that one might occur - not even that quantum of evidence that would lead a reasonable person to believe that a

rape was likely to occur. Draper sets the standard for the quantum of evidence sufficient to constitute reasonable

grounds for expecting that a crime will occur in the future. The Draper standard was not met my the police in this

case. (Nobody is faulting the police for being concerned and helpful; we are faulting them for feigning concern

as a pretext for entry in order to take a neutral and detached magistrate out of the loop.) Melissa

Schwentner did not testify at trial or at the suppression hearing that she used the word "rape" in her

report to the police; she only mentioned the word rape before the grand jury explaining "Because if he was

acting that way toward her with me around, I mean, I'd (sic)with hate to see the way he was acting when I left"

(CT 211:15). Matz testified that Desk Officer Cindy Turner used the word "rape" to describe the situation (Oct 31

29:14). Although Officer Matz asked to speak to Schwentner, she had already departed the police station (Oct

31 29:28). Only Matz testified (relating hearsay) that Desk Officer Turner talked to Schwentner (Oct 31 29:4).

Schwentner did not know who she talked to and Turner failed to appear and did not testify despite a prosecution

Issue #19 Police intrusion was disproportional to exigency. The denial of the suppression motion should

be reversed because the police in Palaschak's case intruded beyond the justification of the

exigency - the standard enunciated in US v Socey 846 F 2d 1439 (DC Cir 1988) and Segura v

"The nature of the exigency defines the scope of the search and thus exigent circumstances may

justify a warrantless entry and securing of the premises but not justify a full scale search of the

occupants of the premises. A warrantless entry or search must be proportionate to the exigency

"A warrantless search absent exigency is illegal." - Segura v US (1984) 468 US 792, 82 L

Issue #20 What is the remedy for failure to honor a subpena if the defense does not immediately seek

a contempt order? Is the right waived? The civil discovery remedies are inadequate because

criminal witnesses have no obligation to participate in pre-trial discovery, generally speaking.

Issue #20.1: Remers issue - Desk Officer Cindy Turner failed to appear and prosecution failed to carry the

burden of proof of probable cause for entry through the outer door, Schwentner having failed to testify that she

"When it comes to justifying the total police activity in a court, the people must prove that the source of

the information is something other than the imagination of an officer who does not become a

Remers at 666 cites a long line of cases for this proposition and in turn is cited in ALR4th 29:771@795 (1984)

Lawfulness of warrantless search of purse or wallet of person arrested or suspected of crime. The denial

of the suppression motion must be reversed because Officer Cindy Turner failed to honor her subpena and

deprived Palaschak of 1) his 6th Amendment (and California Constitution) right to compulsory production of

witnesses and 2) his opportunity to prove that there was not reasonable grounds to dispatch police to Palaschak's

office. Palaschak's situation is stronger than Remers's. Arresting Officer Matz founded his exigent entry upon

the word "rape" (Oct 31, 29:13) allegedly used by Dispatching Desk Officer Cindy Turner. But Melissa

Schwentner did not ever mention rape at the suppression hearing or at trial - only before the grand jury - which

may be what Judge McNally remembers - and his reading the grand jury transcript is prejudicial, as discussed at

issue #23. In fact Melissa offer the supposed rape victim a ride home prior to the expected future rape and

expected-future-rape-victim Jessica declined the ride. (Oct 31, 26:7). The prosecution bears the burden of

justifying the warrantless intrusion; that in turn depends upon a showing of probable cause or exigency which in

turn requires testing the information; that testing could not be done because Desk Officer Cindy Turner failed to

appear, although subpoenaed (Oct 31 63:13). Furthermore, even if she did appear the speculation related to

was inadequate at law. Before the grand jury, Schwentner testified that she told Desk Officer Turner (CT

"Because if he was acting that way toward her with me around, I mean, I'd (sic)with hate to see the way

Matz testified that Desk Officer Cindy Turner used the word "rape" to describe the situation (Oct 31 29:14).

Although Officer Matz asked to speak to Schwentner, she had already departed the police station (Oct 31 29:28).

Officer Matz admitted (Oct 31 43:13) that Jobin (and necessarily by implication, Palaschak also) was a drug

target. The dispatch log records the response as "narcotics". Matz testified that he could easily have

simply telephoned Jessica at Palaschak's office to check on her welfare but did not do so (Oct 31 50:17).

Officer Matz admitted on direct examination that the "concern" was "the fact that there's a possibility

that there was drugs being used in the office" (Oct 31 49:11). Defense desired to inquire of Desk Officer

Turner. 6th amendment rights were violated by her failure to appear. But there is ample evidence on the record

to conclude that there was no probable cause to believe that a crime had been committed or was likely to be

committed. Regarding drug crimes, use of LSD is not a crime in California, and Melissa testified that she did not

see Palaschak and Jobin when they eat their LSD - and she did not share the knowledge of Jobin's possession of

LSD until months later; conclusion: No drug probable cause. Regarding sex crimes, there was no report of a sex

crime having been committed, nor do the facts related by Melissa constitute reasonable grounds to expect a sex

9 There was no probable cause to arrest Jobin prior to finding the LSD but even if she had been

arrested, she was not required to take her purse, and if the police had made her take her purse, the result

would be suppression of the LSD when inventoried as in People v Ingham (1992 5th dist) 5 CA4th 326.

crime. Although Draper annotation at 3 L Ed 2d 1736 is outdated and replaced by 6 ALR Fed 724 the articles

nevertheless are both adequate for our purposes because they demonstrate that the facts related to the police

regarding Palaschak are drastically insufficient to justify probable cause regardless of slight fluctuations in the

Issue #21 Testimony of Newspaper Reporters. The court committed prejudicial and reversible error in

overruling defense's objection (at RT 304:20) to the inflammatory and nonprobative hearsay

statements of newspaper reporters Gorman and Sturgeon reported at RT 307:16 and RT 280:28

The statements went beyond any exception to the hearsay rule. Furthermore, under Evidence Code

§352 the prejudicial value outweighed any probative value. The probative value only related to use - which,

under Spann cannot prove possession. Therefore the probative value is zero - which is easily outweighed by the

prejudicial value - society's prejudice against unpopular beliefs (such as Palaschak's advocacy of drug

legalization) and society's strong emotional prejudice against older man/younger woman relationships - which

prejudice would likely be enkindled by the statement "Palaschak . . . likes to have close relationships with is

"A prosecutor who seeks to rely upon consent to justify the lawfulness of a search or seizure has

the burden of proving that the consent was, in fact, freely and voluntarily given, and this burden

cannot be discharged by showing no more than acquiescence to a claim of lawful authority." -

This headnote from Bumper set a standard that was not met by the prosecution in Palaschak's motion to

suppress. On 2 occasion Jessica Jobin merely acquiesced; 1)she opened the door to uniformed police who

asked to enter; and 2) she surrendered the LSD when ordered to under the threat of "We'll find it anyway" (Oct

Issue # Was the office secured by police? The suppression motion should have been granted; Judge McNally

overlooked substantial evidence in concluding (Nov 4, page 31, lines 6-10) that the police action "did not amount

to a securing" despite McNally's admission (Nov 4, page 31, line 6-7) that Officer Matz intended "not to let

anybody leave the area" and despite Jessica Jobin's testimony that she felt that she was not free to go (Nov 4,

page 8, lines 25-27; Question by defense counsel: "Did you feel that you had the right to say no at that point?

[i.e. upon being ordered outside the office for questioning]"; Answer: "No") , but more importantly, the issue

should have been moot since citizens in their homes, offices, and other private places are not obligated "to go"

anywhere when the police intrusion is at the home or office of the citizen; it is the police who should have

Issue #23 Suppression. Judge McNally should not have read the grand jury transcript. Judge

10See the cases cited in Sixth Amendment Exclusionary Rule: Stepchild of the Right to Counsel.

24 Houston Law Review 765, July 1987. See also Sixth Amendment - Paternalistic override of Waiver

of Right to Conflict-free Counsel at Expense of Right to Counsel of One's Choice. 79 J Crim L 7

Criminology 735, Fall 1988. See also Sixth amendment - Preclusion of Defense Witnesses and the 6th

amendment's compulsory process Clause Right to Present a Defense, 79 Crim L & Criminology 835,

Fall, 1985 discussing Taylor v Illinois 108 S Ct 646 (1988) wherein a defendant was precluded, as a

sanction discovery violation, from bringing a witness in his defense - this case being the exception that

proves the rule. See also Jonakait, Restoring the Confrontation Clause to the 6th amendment. 35 UCLA

McNally erred in reading the grand jury transcript and this error was prejudicial in that the grand

jury testimony was given without benefit of cross-examination - thus depriving Palaschak of his

WITNESSES - especially considering the drastic difference in the testimony of the witnesses

when not subject to cross examination. U.S. Constitution. 6th amendment. In particular, Melissa

Schwentner testified before the grand jury that she "thought [Jessica Jobin] was going to get

raped or something" (CT 211:9). Having seen these powerful words in writing, Judge McNally

could look at them again to imprint a stronger image in comparison to the oral testimony at the

suppression hearing - testimony that cannot be refreshed; one cannot pause at a hearing to look

at the words again. Melissa did not use the word "rape" at the suppression hearing;

therefore defense had no reason to ask her why she used the word; therefore Judge

McNally should have wondered (as defense wonders) why Desk Officer Cindy Turner to

use the word "rape" in dispatching Officer Matz. Cindy Turner failed to appear although

The remedy is exclusion. Although the exclusionary rule is popularly known to apply to 4th amendment violations

- in general the concept applies to all violations of constitutional rights - including violations of the 6th

Issue #24 Miranda. Officer Matz admitted (Oct 31 43:13) that Jobin (and necessarily by implication,

Palaschak also) was a drug target; therefore all incriminating statements (and evidence resulting

therefrom including the LSD) must be suppressed because Jobin was not Mirandized until on her

way to the police station (RT 140:10). Miranda v Arizona (1966) 384 US 436, 16 L Ed 2d 694, 86

S Ct 1602. ALR3d 31:565 What constitutes "custodial interrogation" within rule of Miranda

v Arizona requiring that suspect be informed of his federal constitutional rights before

custodial interrogation confirms that the key determinant is whether Palaschak and Jobin were

the focus of a criminal investigation; Officer Matz admitted that Jobin was a target - and Officer

Cindy Turner was subpoenaed (Oct 31 63:13) to prove that Palaschak was a target but she failed

to appear. Despite the lack of evidence sufficient to justify a warrant (and in fact BECAUSE OF

THIS ABSENCE OF EVIDENCE) the responding officers were eager to find SOMETHING -

officer Matz testified unequivocally that he had "secured the office" (Oct 31 42:18) and that "Mr.

Palaschak and Miss Jobin were not free to leave" (Oct 31 42:14). Jessica testified that she was

not free to leave (Nov 4 8:27). A multitude of cases cited in this ALR annotation support the

contention that Jessica's subjective knowledge that she was not free to go caused the

questioning to be custodial - the clear focus of Officer Dawson on the remaining LSD

Issue #25 Palachak has Wong Sun standing to contest seizure of Jessica’s purse and Judge McNally

erred reversibly in finding that he did not have standing. See the side-by-side comparison

above. Palaschak has standing to contest violation of Jessica's Miranda rights under Wong Sun.

However, the Wong Sun analogy to Palaschak's case is imperfect in that Jessica Jobin testified

against Palaschak, whereas her corollary, Johnny Yee did not testify against Palaschak's

corollary, Blackie Toy. However, suppression of merely the LSD would be fatal to the case.

Furthermore, Jessica Jobin's testimony is the product of other constitutional violations and is

Issue #26 The SPANN USE/POSSESSION TRANSMUTATION issue: The attempt by prosecutors to

transmute legal use into illegal possession by backtracking to the point of ingestion thwarts the

legislative intent in treating these 2 crimes differently - as explained in People v Spann (1987)

187 CA3d 400, headnote #2 which when "LSD" is substituted for substituted for the word

"The history of drug laws shows a consistently different classification and punishment for the use as

distinguished from the possession of regulated substances, with use, or being under the influence,

invariably treated as less culpable or, in the case of LSD not culpable at all. Given this differential

treatment, it is obvious that the legislature did not intend mere use to constitute possession, and the one

crime cannot be made into the other either directly, by admixing their elements, or indirectly by

circumstantial reasoning. The ultimate fact of one offense cannot be used to prove the

categorically different ultimate fact of another offense. Accordingly, non-criminal conduct such

as being under the influence of LSD (which the legislature has categorically deemed noncriminal,

as exemplified by its deletion of that drug from the list of drugs in Health and Safety

Code section 11550) cannot be transmuted into criminal conduct by the prosecution by

employing such fact to circumstantially prove possession of LSD in lieu of use." Headnote 2 of

Obviously all wilful use of LSD initially involved some possession however minuscule - and therefore

possession, Health and Safety Code 11377, by standard rules of interpretation must mean more

In Spann the defendant was in jail and found to be intoxicated and a blood sample was drawn which

revealed the presence of diazepam and nordiazepam. Diazepam is commonly known as valium and

nordiazepam is a metabolite of Valium - a product produced in the body when Valium is metabolized. Although

being under the influence of Valium is not a crime, possession of Valium is a crime - a violation of Health and

Safety Code 11377 - the same section that makes possession of LSD illegal. (Spann, however, was charged

with a violation of Penal Code section 4573.6 which then proscribed possession of controlled substances in jail

In Palaschak's case if the uncorroborated testimony of accomplice Jessica Jobin is excised, then the only

evidence of possession of LSD is the ambiguous symptomatology of Palaschak and the testimony of people who

testified that Palaschak admitted to having used LSD - and this quantum of evidence is merely use - not

possession. Absent the uncorroborated testimony of accomplice Jobin, the evidence in Palaschak's case is

weaker than the evidence in Spann's case because Spann's blood was tested and contained Valium. By

At Spann's trial it was contended that possession extends to the presence of the proscribed substance in

the body after consumption - a theory that was not pursued by the Attorney General in Spann's case - and a

theory that is moot in Palaschak's case since there was no chemical testing and hence no chemical evidence of

Evans v State (1931) 24 Ala. App. 196 (132 So. 601), a prohibition era case, held that whiskey is not

"possessed" when it "is in the man" after consumption. (Of more moment is the fact that prohibition statutes

exempted sacramental wine in deference to majoritarian religions. Traditionally non-majoritarian beliefs rely on

the courts for protection - although the legislature of California has helped by "legalizing" the use of LSD - but not

the possession.) See also Nethercutt v Commonwealth (1931) 241 Ky. 47, 43 SW2d 330; liquor in the

stomach is not "possessed". Similarly, State v Downes (1977) 31 Or App 1183, 572 P2d 1328, 1330 holds that

phencyclidine (PCP) is not possessed by the user after it has been injected into his arm. See also Franklin v

State (1969) 8 Md App 134, 258 A 2d 767, accord heroin; State v Flinchpaugh (1983) 232 Kan 831, 659 P 2d

208, accord, cocaine. Other cases have consistently held that taking a drink, i.e., using alcohol, was lawful when

possession was unlawful. See e.g., Sizemore v Commonwealth (1924) 202 Ky 273, 259 SW 337. Sizemore is

cited for authority in Colbaugh v US (8th Cir 1926) 15 F2d 929. Sizemore talks about the gift of an intoxicant -

pertinent here since the evidence shows that the LSD was a gift from Jessica to Palaschak. In Sizemore the

main witness, a witness who knew the defendant well, as here, testified that he saw the defendant pick up a

bottle of liquor, take a drink, and put the bottle back down. There was conflicting testimony as to whether the

defendant found the bottle or received it as a gift - but the court found the difference irrelevant - neither

"[W]here a person treats another by offering him intoxicants, although the vessel may change

hands, the constructive custody of the article remains in the owner, who is really in control and

In Palaschak's case, the card can be considered the vessel. Recall the similarity in that Jessica Jobin testified

that she removed the LSD from the birthday card (RT 98:3) tore off the LSD paper (RT 98:4) and put the LSD

"A person who bona fide finds a vessel containing liquor and takes a drink wherefrom and returns

the remainder without assuming further control thereof occupies a somewhat different attitude.

To the extent indicated he assumes control and possession, but such possession is only an

element in the act of taking the drink, and while this would be larceny or trespass if the liquor was

property, or had and owner, we hardly think that they legislature intended for it to constitute the

unlawful possession denounced by statute or it would have made it unlawful to take the drink. . "

These and other cases distinguish between the use of a proscribed substance, by its ingestion, consumption or

injection for the purpose of its effect upon the human body, and its possession. Similarly, under California law,

the proscription of use in H&S 11550 implicates the physiological processes of the body whereas possession

does not. Both the use and being under the influence of a proscribed substance are treated alike by H&S 11550.

"the object of the statute is to proscribe a use of narcotics that is an activating part of the process

of addiction whatever may be the state of that process at the time of their use. The provision

making it an offense to be under the influence must be construed in light of this object." -

People v Davis (1966) 240 Cal App 2d 496, 501. See also People v Velasquez (1976) 54 Cal

These distinctions are deeply imbedded in the California criminal law. "Scarcely a legislature since 1872, when

California passed its first law concerning the administration of narcotics to commit a felony, has failed to adopt

some law dealing the problem." The Narcotic Problem (1954) 1 UCLA L Rev 405, 502. The law was codified in

1939 with the enactment of the Health and Safety Code. The transportation, distribution, or selling of narcotics,

as defined by former H&S section 11001 was made punishable as a felony or misdemeanor in the discretion of

the court. By comparison, the use of narcotics was not addressed except for use amounting to addiction, for

which the addict could be jailed. In 1940 possession was added to the list of proscribed acts under former H&S

In 1962 California's proscription against addiction was held unconstitutional in Robinson v California

(1962) 370 US 660, 667, 8 L Ed 2d 758, 762, 82 S Ct 1417. The legislature responded by creating the new

offense of "use or being under the influence of narcotics" in order to sidestep the constitutional proscription

In 1965 the legislature created the new classification of "restricted dangerous drugs" and made their

possession without a prescription a misdemeanor. Former H&S §11910. Their use was not made a crime. In

1972 California repealed this law and replaced it with an amended version of the Uniform Controlled Substances

Act. The drugs included within the repealed provisions were relabeled "controlled substances" and classified into

5 schedules. The possession of most schedule I and II drugs was made a felony (H&S 11350). Possession of

most schedule III, IV, and V drugs was made an alternate felony or misdemeanor (H&S 11377). In a separate

chapter, the act addressed "Control of Users of Controlled Substances". The use or being under the influence of

In 1973, in response to a request from California Superior Court judges, the legislature removed certain

substances from the felony provisions of H&S 11350 and transferred them to the alternate felony/misdemeanor

provisions of section 11377. These revisions were accompanied by an urgency declaration that they were

intended to cure inadvertent substantive changes made by following the federally promoted uniform act.

This history of drug laws shows a consistently different classification and punishment of the use and

possession of regulated substances, with use (or being under the influence) invariably treated as less culpable or

not culpable at all. Given this differential treatment, it is obvious that the legislature did not intend mere use to

constitute possession. Nor, as we next show, may that result be achieved indirectly by transmuting the one into

In People v Sullivan (1965) 234 Cal App 2d 562, 44 Cal Rptr 524, the court overturned the conviction of

a defendant who had been convicted of possession of heroin (former H&S 1150) on the basis of evidence that he

was under the influence of heroin when arrested and that he possessed a narcotic injection kit containing a small

residue of heroin. On these facts it is clear that a circumstantial case, inferentially liking use to possession, had

been made out, justifying affirmance on the basis of the substantial evidence rule. Nonetheless, in reversing the

conviction, the court held that the quantity of heroin found (outside the body) was too minuscule to sustain a

conviction and rejected the theory that the crime of "possession" could be predicated upon the fact that the

defendant had used heroin. Justice Fleming, writing for a majority of the court, said:

"Were we to accept evidence of recent past possession of narcotics as equivalent to

proof of present possession of narcotics, then we could charge every addict who was

currently hot [under the influence] with [the additional crime of] possession of a narcotic,

since he must have had possession of the narcotic in the recent past in order to come

unlawful possession of narcotics, the criminal law is engaged in a continuous process of

drawing lines, and in the enforcement of offenses involving possession of narcotics fixed

lines appear to be unavoidable. People v Cruz (1965) 61 Cal 2d 861, 866, 40 Cal Rptr 841,

distinguishing the crimes of possession of narcotics paraphernalia ([former] H&S 11555)

and being under the influence of narcotics ([former] H&S 11721), both misdemeanors,

from the more serious crime of possessing the narcotic itself ([former] H&S 11500) a

The distinction is even more important in the case of LSD because use of LSD is less than a

This passage from Sullivan demonstrates the theory that circumstantial reasoning from use to

Sullivan has been adopted by the California Supreme Court. In People v Leal (1966) 64 Cal 2d 504, 50

Cal Rptr 777, 413 P 2d 665, the Supreme Court reversed the conviction of a defendant was had been convicted

11This is the point that was not considered in Russell v Superior Court (1970) 12 Cal App 3d

1114, 91 Cal Rptr 255 where it was held that evidence of barbituric acid found in the blood of an inmate

of an honor camp was sufficient to furnish probable cause to have him answer a charge of possession of

a restricted dangerous drug in the camp in violation of Penal Code §4573.6 - similar to the situation in

Spann but with an opposite result. Shepards reveals that Russell is followed once and criticized in the

few remaining citations while Spann is cited about as often but not criticized. The 3rd Federal Circuit

upheld a conviction in a similar factual situation in US v Blackston 940 F2d 877 (3rd Cir 1991); however,

of possession of heroin upon evidence showing that he possessed a heroin injection kit and a spoon containing

one-half grain of crystallized heroin; and when arrested the pupils of his eyes were dilated and that his arms

showed scarring resembling hypodermic needle marks. As in Sullivan this evidence clearly tended to

circumstantially prove the antecedent possession of heroin. Nonetheless, the court, relying upon Sullivan, held

that possession could only be shown by the presence outside the body tissue of a usable quantity of the

proscribed substance. The Supreme Court adopted Sullivan at page 510 of Leal and even quoted from Sullivan

"This distinction is pertinent where the evidence shows that defendant was in possession of a narcotics kit and

under the influence of narcotics; but does not support the charge that he knowingly possessed heroin." -

Therefore Leal must be read as a rejection of the proposition that possession of a proscribed substance may be

What flows from these cases is that use cannot be made into the crime of possession either directly, by

admixing their elements, or indirectly by circumstantial reasoning. The ultimate fact of one crime (drug use)

cannot be used to prove the categorically different ultimate fact if another crime (drug possession). This is all the

more true - and all the more unpalatable to the anti-drug mentality - when the use is legal - and the logical result

is not merely a reduction in the severity of the crime but acquittal. However, the legislature, by its separate

categorization and punishment of the crimes through the years, has made this conclusion inescapable and

obvious. When the legislature categorically rejects LSD use is illegal - by removing LSD from H&S 11550, we

cannot thwart that effort by transmuting legal behavior into the element of a crime. To conclude otherwise would

be to transmute one crime into another or to transmute wholly noncriminal conduct into criminal conduct, in short

These principles have direct application to the case at hand. H&S code 11377 uses terms which employ

the definitions taken from the controlled substances laws. The history of those laws is pertinent and court

decisions interpreting those laws are binding precedent. Accordingly, "possession" as used in 11377 does not

mean "use" and mere evidence of use (or being under the influence) of a proscribed substance cannot

This conclusion is not altered by the fact that the unprescribed use of LSD is not proscribed. Conduct

which has categorically been rejected as criminal, may not be made into criminal conduct by employing it as

circumstantial proof of the conduct that is a crime by the treatment of use as circumstantial proof of possession11.

the different holding does not imply any flaw in the logic of Spann; the Blackston decision is against a

substantially different statutory background - to wit, federal law does not differentiate between drug use

and drug possession - the therefore the Spann paradox does not arise. The 9th circuit avoided the

Spann dilemma issue while acknowledging Blackston in US v Martin 984 F 2d 308 (9th Cir 1993). In

Russell and Blackston the court inferred the antecedent possession of the substance.

The court in Russell noted the potential criterial problem arising out of this relationship between the noncriminal

activity of use and the crime of possession but asserted incorrectly that the difficulty, if any, arises solely where

there is a conflict between a general and special statute making criminal the same conduct. (Conflicting general

and specific statutes are discussed in Issue #27.) This logical fallacy leads to the obviously illogical deduction

that possession of a controlled substance may not be proven by its criminal use by may be proven by its

noncriminal use. That stands the law on its head. The noncriminal use of a controlled substance may not be so

The prosecution has failed to produce adequate evidence to sustain a conviction of H&S 11377. A

"When the verdict or finding is contrary to law or evidence, but in any case wherein the authority

is vested by statute to recommend or determine as part of its verdict or finding the punishment to

be imposed, the court may modify such verdict or finding by imposing the lesser punishment

without granting or ordering a new trial, and this power shall extend to any court to which the

The better remedy is reversal - as a matter of logic, the prosecution cannot prove its

case. Conviction requires more than mere evidence of use - and since Jessica Jobin, the

accomplice, was the only person who testified to any indicia of possession beyond the indicia of

mere use, and since her testimony regarding possession cannot be corroborated as to who

possessed the LSD, the case cannot be proven even upon retrial. Therefore reversal is the only

Issue #26.1: The court erred in not offering a Spann instruction sua sponte. See L Ed 2d 92:862 Supreme

Court's Views as to prejudicial effect in criminal case of erroneous instructions to jury involving burden

Issue #26.2: Jury Instruction Caljic 3.12 at CT 114 is not strong enough in connection with a Spann issue and

requires special instruction that Palaschak's possession must be proven by more than Jessica's testimony.

Issue #26.3: Jury Instruction CalJic 3.13 should have been more clear in that one cannot legally infer Spann

possession from Palaschak's admission of use of LSD - and reversal is required because of the jury's invitation to

infer possession by use by the reference to People v Ruscoe (1976) 54 CA3d 1005, 1011-13 holding that

defendant's own testimony and inferences therefrom may be sufficient corroborative testimony. The court should

have issued a modifying Spann instruction. On appeal we must assume that all inferences were inferred

favorable to the verdict. Authority: People v Perry 7 C3d 756, 774 (cited in Ruscoe at 34 CA3d 1011). In

Palaschak's case we must assume that the jury inferred possession from Palaschak's admission of LSD use (as

testified by the newspaper reporter) as they were invited to do by the inapplicable Ruscoe quote appended to

12Two illustrative cases are People v One 1962 Chevrolet 248 CA2 725 (regarding forged

prescription for a drug that needed no prescription) and In Re Williamson (1954) 43 C 2d 651 (specific

statute regarding a specific type of conspiracy prevails over general conspiracy statute) . Many more

Issue #27 The more specific statute prevails over general. Drug use constitutes possession plus an

additional element and therefore the drug use statute is a more specific statute than the general

possession statute; therefore, under the theory of Witkin at section 63b the more specific statute

prevails - and Palaschak therefore cannot be convicted of possession under these facts - and

because use is categorically permitted for this drug, LSD, Palaschak cannot be convicted of use

either. Under the prosecution's theory, all use includes possession, but this stands the law on its

head12. Witkin says that a determinative factor is whether the more specific statute requires and

additional element; Since the statutory offense of using drugs is more specific than possessing

drugs, the use statute (H&H 11550 or Penal Code §647 - Palaschak's original charge) should be

applicable in Palaschak's situation - and since LSD use is specifically excluded from proscription

by statute (except in the context of public intoxication - PC 647) the result is obvious - a

Most of the multitude of cases listed in Witkin deal with overlapping and competing statutes from

different areas of the law. However, the 2 statutes in question here were designed as part of the same scheme.

The intention of the legislature seems clear from the history of the statutes. And the result is palatable to all but

the most zealous prosecutor - or the prosecutor stuck without any crime with which to charge the principal - which

is exactly the situation in Palaschak's case. The police originally charged Palaschak only with PC 647f

(commonly called drunk in public) but the DA rejected that charge because Palaschak was not in public.

Issue #28 Proof of Lesser offense cannot be sole proof of greater offense. Authority: Smith v Superior Ct.

(1977) 137 Cal Rptr 348, Marriage of Steiner (1979), 152 Cal Rptr 612, Mar. Of Hopson (1980)

“Where the general statute standing alone would include the same matter as the specifial act [i.e.

statute - in this case H&S 11550], thus conflicting with it, the special act will be considered as an

exception to the general statute.” Smith v Superior Court (1977) 137 Cal Rptr 348.

Issue #29 Proof of the lesser offense may not lawfully be the sole proof of the greater offense - especially

where the lesser offense (in this case use of LSD) is lesser to the point of being non-culpable

(and especially where the lesser offense is a more specific statute and requires an additional

element); therefore proof of Palaschak's use of LSD cannot be the sole proof of his possession

of LSD. Possession of controlled substances is indeed a greater offense than use; use is never

a felony - even the 15th offense (and such recurrence is common) absent an aggravating factor

such as simultaneous possession of a loaded firearm. By comparison, simple possession can be

a felony on the first offense. The criticism of Russell supra (which alludes to this rule but does

Issue #30 Proof of non-commission of lesser included offense cannot constitute proof of the greater

offense. Had Palaschak ingested cocaine or methamphetamine he would have been charged

and convicted for H&S §11550 and the police would not have bothered with searching for a

crime. Because Palaschak used LSD, the use of which is NOT a crime, the police, having had

their original PP 647-f charge against Palaschak rejected by the DA and disdaining the thought

of permitting a ardent drug legalization advocate go completely free after having admitted using

drugs, sought some hook on which to hang their hat - the resorted to this specious possession

charge. The proposed logic here is telling. Under the Prosecution's theory that use includes

possession, Palaschak would have been punished less if he had actually committed 11550 using

a drug whose use is proscribed - like cocaine - because then the police would not have had to

look for a crime with which to charge Palaschak. This logic thwarts the legislative intent - as

discussed in the section regarding the SPANN TRANSMUTATION - Issue #26 at page 43.

Issue #31 Consumption vitiates the crime of possession. Whereas the prosecution conceded that

Palaschak did not have constructive possession of the LSD in Jessica Jobin's purse (RT 330:4:

Prosecutor's closing argument: "I'm not going to ask you to find joint control here, and the reason

for that is Mr. Palaschak had LSD in his hand"), and whereas Palaschak's conviction must then

rest on possession of the 1.5 doses that were subsequently consumed by Palaschak, and

whereas the logic behind the proscription of drugs in general as enunciated by the California

Supreme Court in Leal 64 C 2d at page 511 is that possessors "by their possession of narcotic

substances have created a potentiality for future use or sale", and whereas the potential for

personal use was not a potential for crime (because the legislature legalized LSD use), and

whereas by virtue of hindsight we see now that the potential for future sale of LSD that has

already been eaten is a nullity, now therefore the reason (potentiality for future use or sale)

behind the proscription is absent, and whereas the prosecution bears the burden of proving the

potentiality (for future illegal use or sale), and whereas that potentiality cannot possibly be

proven in Palaschak's case (because the potentiality for illegal use or future sale does not exist)

the conviction must be overturned as a matter of law regardless of the jury's conviction.

Issue #31.1: Dominion and control is not the sole determinant. Illustrative hypothetical: What does one do when

one receives the gift of LSD? If one exercises dominion and control to flush it down the toilet, the one has

nonetheless demonstrated dominion and control of a drug yet we would hardly find a mens rea. Aha!

Issue #31.2: Palaschak's Mens Rea was that of use and therefore possession is an inappropriate conviction.

Issue #32 Certain Mens Rea can obviously be a defense; therefore 11377 is a specific intent crime and

the court erred in failing to inform the jury sua sponte that possession of LSD is a specific intent

crime. Obviously where the intent is to simply use a drug whose use is legal, the mens rea is

important - and significantly, we observe a disdain for the theory of mens rea in traffic courts and

13In the movie "The Nuremberg Trials" it was observed that as Germany became problematic the

courts focused less on cases between people and became more focused on cases between the state and

the citizen - like the trend we see in traffic court - and drug court - both concerned with victimless crimes

and both attractive because they raise revenue - and this bureaucratic lust can lead to disastrous results

- like Donald Scott - but the cumulative impact in irritation to the populace causes a problem that needs

resolution. Surgeon General Jocelyn Elders calls for legalization of drugs and I agree.

14"When taxes of this kind had been proclaimed, but not published in writing inasmuch as many

offenses were committed through ignorance of the letter of the law, he at last, on the urgent demand of

the people, had the law posted up, but in a very narrow place and in excessively small letters, to prevent

the making of a copy." Suetonius, The lives of the 12 Caesars 192 (Modern Lib Ed 1931).

Issue #33 Lack of Notice - LSD listed by chemical name. Health and Safety Code section 11377 is

unconstitutional as applied to persons who possess LSD incidental to use because 11377 fails to

give notice that LSD possession is proscribed since 11377 proscribes those drugs in a list in

another code section - Health and Safety Code Section 11054 - which DOES NOT LIST LSD -

This is like Caligula's practice of printing the laws in small print and placing them so high on a

Issue #34 Leal Usable Quantity Doctrine - LSD consumed by Palaschak. Pursuant to the Leal USABLE

QUANTITY DOCTRINE Palaschak's conviction for possession must be overturned because the

prosecution could not, of course, prove chemically what was in the tabs that Palaschak ate

except by inference from the tabs that they tested. They failed to - or chose not to -

QUANTITATIVELY ANALYZE the seized LSD and therefore they failed to prove the amount of

LSD per dose in the LSD that was seized and therefore the prosecution could not by inference

prove that there was sufficient LSD in the 1.5 tabs consumed by defendant Palaschak to

constitute even 1 dose since the crime lab did not measure the quantity of LSD (RT 177:18) and

did not determine that the tabs did not contain other drugs that could have produced the

observed symptoms - although admittedly we don't know of any other drug that could produce

On cross examination Criminalist Margaret Barber testified that she did not do any quantitative analysis -

and was not asked to do any. (RT 177:18 - 177:22) Criminalist Barber testified that the LSD from "a couple of

the other squares" (RT 174:2) or "3 or 4" squares (RT 177:11) was used to obtain a sample for confirming that

15Headnote #9 in Huddleston v US (1974) 415 US 814 at 831, 39 L Ed 2d 782 at 796, 94 S Ct

1262 at 1272, a case from Oxnard quoting from the following cases: Rewis v US (1971) 401 US 808,

812, 91 S Ct 1056, 1059, 28 L Ed 2d 493. US v Bass (1971) 404 US 336, 347, 92 S Ct 515, 522, 30 L Ed

there was some trace of LSD present. At RT 173 Criminalist Barber testified that she did first a presumptive

color test and then extracted LSD from the blotter and confirmed that it was LSD by comparing the infrared

spectrum with a known standard spectrum. However, she did not testify that a square of the paper contained a

usable quantity. In view of the Newspaper Reporter Jeff Sturgeon's testimony that Palaschak said that "I'm not

sure I took LSD; I didn't see bright colors and things" it is plausible that the blotter paper contained the product of

a sloppy amateur chemist - only partially LSD. Leal hold that it is the burden of the prosecution to prove that the

defendant possessed not just a trace but a USEABLE QUANTITY. It is conceivable that 3 or 4 squares (a square

being equal to one dose) were required to even provide a tract - much less a useable quantity - but we speculate.

Nonetheless the prosecution failed to prove anything in terms of quantity - and therefore the conviction must be

overturned. The Supreme Court held in Leal that conviction cannot rest on symptomatology and a trace - a

useable amount must be shown. See also ALR5th 4:1 Minimum Quantity of Drug Required for Conviction of

Possession. This article cites State v McGuire (1972) 16 AZ App 346, 493 P2d 513 wherein a conviction for LSD

possession was affirmed where the criminalist measured 50 micrograms of LSD but in Palaschak's case there

was absolutely no quantity measured - and not test to see if the blotter paper contained another drug.

Issue #35 Leal Usable Quantity Doctrine - Jobin's LSD. Because the crime lab did not quantitatively

analyze Jessica Jobin's LSD the prosecution could not possibly prove that LSD was present in a

usable quantity despite the ambiguous symptomatology of the defendant, and since the

California Supreme Court in Leal ruled that minute traces will not support a conviction and do not

constitute the potential for illegal use or future sale (of a usable quantify of LSD), Palaschak's

conviction must be reversed - or remitted to the trial court to ascertain whether factual elements

were present. In People v McCarthy (1966) 64 C 2d 513, 50 Cal Rptr 783, 413 P 2d 671, the

Supreme Court reversed and remitted to the trial court a case where the forensic chemist

testified that one of the 2 pieces of cotton seized at the scene bore 0.96 milligrams of morphine

residue. By comparison there was NO quantitative analysis of the LSD seized from Jessica

Jobin (presuming arguendo that analysis of the LSD from Jobin could be imputed to the LSD

already consumed - which is the LSD upon which Palaschak's conviction is based). Therefore

there can be no conviction because there is no proof that the amount possessed was a usable

quantity - even though there was obviously a psychotropic effect - although we know of no other

chemical that would produce this psychotropic effect in such a small dose - but maybe there is

Issue #36 "An ambiguity concerning the ambit of a criminal statute should be resolved in favor of lenity." -

Headnote #9 in Huddleston v US15. Justice Douglas comments in his dissent in Huddleston at

16See Mapp v Ohio (1961) 367 US 643, 6 L Ed 2d 1081, 81 S Ct 1684. See also Supreme

". . . Bass is only another device as lacking in due process as Caligula's practice of printing the

laws in small print and placing them so high on a wall that the ordinary man did not receive fair

warning. "When taxes of this kind had been proclaimed, but not published in writing inasmuch as

many offenses were committed through ignorance of the letter of the law, he at last, on the

urgent demand of the people, had the law posted up, but in a very narrow place and in

excessively small letters, to prevent the making of a copy." Suetonius, The lives of the 12

Issue #37 Reporters testimony as extrajudicial confession. The testimony of reporters from the 2

newspapers constitutes extrajudicial admission or confession. What is the admissibility in that

See ALR2D 45:1316 Corroboration of extrajudicial confession or admission. Cites Wong Sun. See also

Issue #38 Escobedo issue by separate questioning. Police separated Palaschak and Jobin before

questioning. (Oct 31 59:13) Palaschak asked where was Jessica. Is this an Escobedo issue?

Right to counsel implies 1st amendment rights of association and speech and California

Issue #39 Defendant was denied his constitutional right to employ an investigator from jail.

See ALR4TH 81:259 Right of indigent defendant in state criminal case to assistance of investigators.

Issue #40 Irrebuttable presumption that adults cannot safely enjoy LSD is a denial of due processs.

Cleveland Board of Education v La Fleur. The court denied Palaschak's due process rights by

employing the irrebuttable presumption that adults are not capable of possessing and using LSD

and other synthetic empathogens. The denial is inherent in the legislature's myopic classification

of LSD - legal to use but illegal to possess. See ALR3d 50:1284 (1973) LSD or other synthetic

substances as Drugs for purposes of prosecution. 10 pages. Pertinent toward the demurrer that

was precluded. Leary v US 23 L Ed 2d 57 - irrebuttable presumptions implicit in drug laws are

unconstitutional. Cleveland Board of Education v La Fleur (1974) 39 L Ed 2d 52 - irrebuttable