Luke Joseph Rener v. Dr. George J. Beto
447 F.2d 20
5th Cir.
1971
Check Treatment

*1 RENER, Joseph Petitioner- Luke Appellant, BETO, Respondent- George J.

Dr. Appellee. 71-1125

No.

Summary Calendar.* Court Fifth Circuit.

Aug. Rehearing Denied En Banc Sept. Cir.; Enterprises N.Y., Casualty see * [1]Rule 5tlx Isbell v. Citizens Co. of Part I *2 possession Rener of Rener, was convicted of a pro se. Luke J. in vio- to-wit: Dallas, (Court-ap- Burleson, Tex. Phil of the lation Art. 725b of Texas Penal petitioner-appellant. pointed), for in Code was sentenced Martin, Atty. of Gen. C. Crawford Department Corrections. Atty. Parrett, Tex., Asst. R. Charles appeal direct his conviction On was Atty. White, Asst. Gen., First Nola affirmed,1 ap- thereupon an and he made Walker, Asst. Gen., Executive Alfred corpus. plication a writ of for Flowers, Asst. Gen., Atty. Robert C. Having unsuccessfully exhausted his Tex., respondent- Gen., Austin, Atty. sought remedies, next ha- state Rener appellee. court, the relief federal district beas only Rener now to meet the same fate. THORNBERRY, MORGAN Before rejected urges previously these same Judges. CLARK, Circuit grounds court as before grant the habeas relief: Judge: CLARK, Circuit illegal and there- 1. His arrest was illegal the fruits the fore appellate the contentions were inadmissi- search and seizure merit, we Rener to be Luke J. ble. ha- court’s the district affirm Texas Penal 2. Article 725b of the corpus relief. beas applied is unconstitutional Code evening March two On the is not a nar- since here routinely pa- Dallas were Police officers drug. cotic trolling they noticed that Rener's His parked. illegally Both Rener ear was and unusual recognized by offi- and his car the were Eighth Amend- the violation cers, personally since was ment. them to have been convicted possession of Rener SEARCH AND SEIZURE standing phone a a was booth with Rener since the arrest standing just young companion female allegedly violative the Fourth was illegal Partially the outside. because of Amendment, subsequent search and parking partially had because there marijua- fruits of such search —the burgla- telephone been a series booth cigarette inadmissible —were area, a ries in the knowl- circumstances, him at Under trial. edge previous of Rener’s criminal however, the arrest we do not find that record, the officers decided investi- constitutionally violative. was gate. They parked made a u-turn and Terry Ohio, got behind Rener’s car and out. When S.Ct. approached teaches 10 feet of may booth, appro- Rener into his sock reached that “[a] small, thin, appro- priate and extracted a homemade and in an circumstances cigarette. ciga- person placed priate approach a the entire manner Concluding investigating possible purposes crim- rette inside his mouth. though appearance there from its and Rener’s unusual inal behavior even cigarette an That act a cause to make arrest.” was engaging in such and Rener about officers were swallow case, activity up until in the instant officers rushed Rener and extracted object Subsequent his Rener took the from mouth. laboratory sock, apparent. positively his The test from officers established marijua- spotted and, a contents of to be traffic violation burglaries view of the rash of State, (Tex.Crim.App.1967).

1. Rener v. 416 S.W.2d 812 area, walking along were street when such classification is without investigation. They cursory to make pointed basis. As was right Morey Doud, had a to be in out in were (1957): in. 1 L.Ed.2d 1485 had a Since the officers equal protection “1. The *3 view, inbe to have the not the Fourteenth Amendment does probable peti cause to that power take from clas the State the destroy marijuana tioner was about sify adoption laws, in the but by eating prior Rener’s it. scope admits of the exercise of a wide conviction was known to the regard, and discretion that officers, that, both of testified whom avoids done it is what is when upon prior experience based and any reasonable basis observation, arbitrary. purely therefore is There was cause to having reasonable classification some make the arrest. As was stated this offend that does not Gordon, circuit in United 421 States merely it is not made because 1970): nicety with mathematical or because Saka, practice inequali As stated it results some Cir., 1964, ty. “If an 3. When classification crime, any question, sees the or what such called in if fruits of a he a law is good reasonably con reason to believe state of facts can to be the crime, *, fruits of a the offi- ceived would sustain the exist required cer is not to look the other ence that state facts at the way disregard evidence, or law was enacted must be assumed. merely because he not armed 4. One assails the classification is with a carry search warrant.” in such a must the burden law showing upon it does not rest CLASSIFICATION OF MARIJUANA any basis, essentially but is AS NARCOTIC arbitrary.” Lindsley v. Car Natural Rener’s attack on constitutional 78-79, Co., bonic Gas legislature’s unreasonableness 337, 340, 55 Ct. L.Ed. 369.” S. classification of as a narcotic We must therefore determine whether degree question does not seek to any there exists reasonable basis which public or the of the would sustain the classification of mari- protect welfare juana as a narcotic. against marijuana. Rather, argues overwhelming that since the and uncon- employed expert testimo tradicted evidence demonstrates ny, together documentary with much nothing there is on which to base the evidence, basically to show Legislature’s classification of is physi not a it narcotic since as a narcotic the classification is cally does not have addictive and arbitrary and should held unconstitu- symptoms” the “withdrawal attributable tional as violative of due drugs to other addictive named in the protection. equal testimony act. The state countered with reviewing drugs Our standard that all mentioned in Article sys scheme used in Texas 725b had an effect on the nervous controlling drugs tem, extent, impaired judgment is not whether it to some Family or (time, wise perception space desirable. Daniel v. distorted Sec. Co., color), might Life dependency Ins. lead —either Legislatures physical psychological un L.Ed. or have —and given powers been wide effects. There was discretion although testimony that, when comes to classifications in the additional adoption pharmacologically and it not would limited narcotic, no error in the actions and have did as a be classified judge, of the district decisions slight Third Webster’s actions. corpus Dictionary, petition of is here- p. of the International New is some- that “narcotic” discloses “inducing mental leth- defined times Affirmed. “soothes, something argy” and as say We are unable lulls.” REHEARING relieves ON PETITION FOR legislature acted arbi- RE- FOR AND PETITION trarily a reasonable basis or without BANC HEARING EN marijuana, it classified PER CURIAM: drugs, as a narcotic.2 addictive The Petition denied Leary United pointed out As-was Judge panel nor and member *4 1967), States, (5th Cir. F.2d regular active service on the Court 6, grounds, 89 S. on other 395 U.S. rev. having requested the Court 1532, (1969), Con L.Ed.2d 57 Ct. gress rehearing (Rule banc, polled on en beyond doubt has demonstrated Procedure; Appellate Federal Rules evil in is an it believes 12) Local Fifth the Petition Circuit Rule Society and a serious American En Banc is denied. Ferguson Skrupa, people.” In to its v. 83 S.Ct. Supreme Court declared * “the due doctrine hold authorizes courts unconstitutional when long legislature unwisely acted has —has returned since been discarded. We have America, UNITED STATES proposition original constitutional Plaintiff-Appellee, that courts do not substitute social judgment economic beliefs PRICE, John Thomas William Hollis legislative bodies, elected to are Price, Defendants-Appellants. pass the clas laws.” We cannot disturb Nos. 35493. Docket legisla adopted sification case. ture the instant United States Court of Second Circuit. CRUEL AND UNUSUAL PUNISH- Argued Dec. 1970. MENT July 8, Decided Finally, Rener Certiorari Denied Oct. thirty sentence of Eighth violated the See 92 S.Ct. 232. This Circuit has Amendment. principle followed the that a sen tence limits set considered unusual. v. United Castle States, 1968); (5th Cir. Rogers States,

(5th 1962). Cir. is within the

prescribed by the Texas Penal Code possessing

a second offense of drug statute, 2. This Circuit indicated even if invalidate appropriate there- was insufficient scientific to do so. United States knowledge drug Drotar, on narcotics and abuse to