THE REAR BEDROOM. DURING THE FEDERAL PRESENTENCE INVESTIGATION, THE DEFENDANT STATED THAT HE WAS ENTIRELY INNOCENT.
"ACCORDING TO THE GOVERNMENT DOCUMENTS FILED, THE DEFENDANT AT THE TIME OF HIS ARREST, AFTER THE MARIJUANA WAS DISCOVERED, STATED, `IT'S ALL FOUND, I WAS JUST DOING A FAVOR; WHEN PEOPLE KNOW THAT YOU WERE IN IT BEFORE, THEY ARE ALWAYS HITTING ON YOU. THAT MARIJUANA WAS JUST THERE AN HOUR. IT'S ALL I HAVE. I HAVEN'T MESSED AROUND EXCEPT FOR GRASSHOPPING SINCE ABOUT A WEEK AGO. THE WEED IS FOR SOMEBODY ELSE, IT CAME UP FROM TIJUANA TODAY. I CAN'T TELL YOU WHO BROUGHT IT UP'.
"PROBATION OFFICER ALSO INSPECTED IN THE FEDERAL FILE THE PROCEEDINGS OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, CASE NUMBER 19,270, DATED APRIL 20, 1965, RALPH A. VANELLA AND GEORGE WILLIAM SULLIVAN APPELLANTS VERSUS THE UNITED STATES OF AMERICA APPELLEE. THE APPEAL WAS FROM THE UNITED STATES DISTRICT COURT *467 FOR THE SOUTHERN DISTRICT OF CALIFORNIA, CENTRAL DIVISION AND WAS HEARD BEFORE FEDERAL CIRCUIT JUDGES CHAMBERS, ORR AND HAMLEY.
"PORTIONS OF THE MAJORITY OPINION, WRITTEN BY JUDGE ORR, ARE QUOTED:
"`HAVING BEEN CONVICTED ON JUNE 12, 1963, OF POSSESSION OF MARIJUANA, VANELLA AND SULLIVAN APPEAL. THEY CONTEND THAT THEIR RIGHTS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED IN THAT FEDERAL AND STATE OFFICERS SUBJECTED THEM TO UNLAWFUL SEARCH AND SEIZURE IN SECURING THE MARIJUANA UPON THE POSSESSION OF WHICH THEIR PROSECUTION WAS BASED AND WHICH WAS INTRODUCED INTO EVIDENCE AGAINST THEM. WE CONCLUDE THAT THEIR CONTENTION IS VALID AND THAT THE MOTION MADE TO SUPPRESS THE QUESTIONED EVIDENCE SHOULD HAVE BEEN GRANTED.'
"THE OPINION GOES ON TO RELATE EVENTS OF THE INDICTMENT OF THE DEFENDANT AND CODEFENDANT IN THE FEDERAL CASE AND DETAILS OF THEIR ARREST. THE OPINION CONTINUES, READING AS FOLLOWS:
"`SUBSEQUENTLY A TRIAL WAS HAD. AT ITS INCEPTION A MOTION TO SUPPRESS EVIDENCE - INCLUDING THE THREE PACKAGES OF MARIJUANA ... - WAS MADE BY APPELLANTS. THE MOTION WAS DENIED AND THE THREE PACKAGES OF MARIJUANA ADMITTED INTO EVIDENCE ...
"`APPELLANTS CONTEND THAT THE TRIAL COURT ERRED IN DENYING THEIR MOTION TO SUPPRESS EVIDENCE SEIZED AT VANELLA'S RESIDENCE. WE AGREE. THE SEIZURE OF THE MARIJUANA FROM THE PERSON OF APPELLANT SULLIVAN AND FROM THE HOME OF APPELLANT VANELLA WAS UNREASONABLE AND IN VIOLATION OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION.'
"THE MAJORITY OPINION CONTINUES, SETTING FORTH THE REASON THE COURT REACHED THAT CONCLUSION. THEY STATE THAT IN THE FIRST PLACE THE SEARCH OF CODEFENDANT SULLIVAN WAS ILLEGAL SINCE THE OFFICERS HAD OBTAINED NO SEARCH WARRANT AND THE CODEFENDANT WAS SEARCHED BEFORE HE HAD BEEN ARRESTED, THUS NOT CONSTITUTING A SEARCH INCIDENT TO A LAWFUL ARREST. `HENCE, THE FRUIT OF THE SEARCH OF SULLIVAN, 88 GRAINS OF MARIJUANA, WAS INADMISSIBLE. WEEKS VERSUS UNITED STATES. 232 U.S. 383 [58 L.Ed. 652, 34 S.Ct. 341, L.R.A. 1915B 834] (1914).'
"THE COURT STATED THAT LIKEWISE THE SEARCH OF DEFENDANT VANELLA'S RESIDENCE WAS ILLEGAL BECAUSE THE AGENTS *468 THAT CAME TO