Wolkind v. Selph

• Decision Date: 02 July 1980
• Docket Number: Civ. A. No. 79-0311-R.
• Parties: Harry L. WOLKIND v. Willard P. SELPH.
• Court: U.S. District Court — Eastern District of Virginia

495 F. Supp. 507

Harry L. WOLKIND v. Willard P. SELPH.

Civ. A. No. 79-0311-R.

United States District Court, E. D. Virginia, Richmond Division.

July 2, 1980.

J. Flowers Mark, Alexandria, Va., for plaintiff.

John R. Alderman, Asst. Commonwealth Atty., Richmond, Va., for defendant.

MEMORANDUM

WARRINER, District Judge.

On 2 August 1977, upon pleas of not guilty and upon a trial to the Circuit Court of Henrico County, Virginia, petitioner Harry L. Wolkind was convicted of violations of Va.Code §§ 18.2-248 and 18.2-250 (Repl.Vol.1975 & Supp.1977), possession of marijuana with the intent to distribute and possession of cocaine. On the marijuana charge defendant was sentenced to a term of five years, which sentence was suspended for 20 years on the condition that he pay a $3,500 fine, plus costs, and serve 9 months in the Henrico County Jail. On the cocaine charge he was sentenced to a term of one year, six months of which was suspended and a $500 fine plus costs, to run consecutively to the sentence on the marijuana charge. It was further provided that if, after serving his sentence on the marijuana charge the petitioner's conduct had been good, the Court would consider a motion to suspend the remaining six-months sentence.

Petitioner's appeal to the Supreme Court of Virginia was denied and a petition for a rehearing in that Court was likewise denied. A timely petition for a writ of certiorari to the United States Supreme Court was denied. On 21 March 1979, the petitioner filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

At the Initial Pre-Trial Conference held 10 May 1979, the Court established a briefing schedule for the presentation to the Court of all legal issues, both parties being in agreement as to the relevant facts. The briefing schedule has been completed.

In a memorandum and order entered on 10 July 1979, the Court granted respondent's motion to dismiss with respect to several of petitioner's claims. Excepted from the purview of the order were those claims challenging the statutes as being violative of petitioner's Ninth, Tenth, and Fourteenth Amendment rights. Wolkind v. Selph, 473 F.Supp. 675 (E.D.Va.1979). Upon motion of the petitioner filed 24 July 1979, the Court granted petitioner's request for reconsideration of the order entered on 10 July 1979. After additional briefing the matter is now ripe for final disposition.

In his amended petition as supported by his brief, the petitioner challenges his convictions on several grounds: (1) that his Fourth Amendment right against unreasonable searches and seizures was violated when police used a trained dog to sniff out contraband in the petitioner's possession when there existed no probable cause to believe petitioner was or had been engaged in illegal drug activities; (2) that petitioner's due process and equal protection rights were violated by the use and admission into evidence of an allegedly unreliable drug courier "profile"; (3) that both the sentence imposed and the statute authorizing such sentence violated petitioner's Eighth Amendment right against cruel and unusual punishment; (4) that the application of statutes under which he was convicted violated petitioner's rights guaranteed under the Ninth and Tenth Amendments; and (5) that the application of the statute further violated his rights to due process and equal protection under the Fourteenth Amendment.

I

Insofar as the petition asserts a claim under the Fourth Amendment that the use of a trained drug dog by the police to sniff out contraband constituted an unreasonable search, the Court will reaffirm the opinion expressed in Wolkind v. Selph, 473 F.Supp. 675, 677-78 (E.D.Va.1979). The claim relating to the use of a drug courier profile as being violative of Fourteenth Amendment due process and equal protection provisions is similarly disposed of. Accordingly, on these grounds the petition must be DENIED.

II

Insofar as the petition challenges the statutes authorizing the sentences imposed, Va.Code §§ 18.2-248, 18.2-250, and the sentences actually imposed as being violative of petitioner's Eighth Amendment rights against cruel and unusual punishment, the Court will incorporate its prior ruling as set forth in the memorandum and order of 10 July 1979. Wolkind v. Selph, 473 F.Supp. 675, 679-80 (E.D.Va.1979). See also, National Organization for the Reform of Marijuana Laws (NORML) v. Bell, 488 F.Supp. 123 (D.D.C.1980) hereinafter cited as NORML v. Bell. The petition must be DENIED on this ground, also.

III

The petitioner further asserts:

That the potential five to forty year sentence for possession with intent to distribute marijuana violates the due process and equal protection provisions of the Fourteenth Amendment to the United States Constitution and that . . . the potential one-to-ten year sentence for simple possession of cocaine violates the due process and equal protection provisions of the Fourteenth Amendment to the United States Constitution.

Circuit Judge Tamm, writing for a three-judge district court in NORML v. Bell, supra, at 134, concisely summarized the equal protection analysis:

Legislation that does not affect a "fundamental" right or a "suspect" class need only bear a rational relationship to a legitimate state interest.

The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if . . reasons totally unrelated to the pursuit of that goal. Legislators are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classification will be set aside only if no grounds can be conceived to justify them.

McDonald v. Board of Election Commissioners, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969). This standard of judicial review gives legislators wide discretion and permits them to attack problems in any rational manner. Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). "In an equal protection case of this type . . ., those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not unreasonably be conceived to be true by the governmental decisionmaker." Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 950, 59 L.Ed.2d 171 (1979). The classification will be upheld unless the "varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that a court can only conclude that the legislature's actions were irrational." Id. at 97, 99 S.Ct. at 943. "In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed on suspect lines . . .." New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976).

Private possession of marijuana is not a fundamental constitutional right. NORML v. Bell, supra, at 133 and cases there cited. Likewise, the private possession of cocaine is not a fundamental constitutional right. State v. Erickson, 574 P.2d 1, 12 (Alaska 1978). See also United States v. Solow, 574 F.2d 1318, 1319-20 (5th Cir. 1978); United States v. Marshall, 532 F.2d 1279, 1287-88 (9th Cir. 1976). Accordingly, Virginia's statutory framework establishing criminal penalties for the possession with the intent to distribute marijuana, Va.Code § 18.2-248, and for the simple possession of cocaine, Va.Code § 18.2-250, need bear only a rational relationship to a legitimate interest of the Commonwealth.

A.

The relevant section of the Code of Virginia at the time of petitioner's conviction of possession of marijuana with intent to distribute, § 18.2-248 (Supp.1977)¹ provided in pertinent part as follows:

Except as authorized in The Drug Control Act, Chapter 15.1 (§ 54-524.1 et seq.) of Title 54 of this Code, it shall be unlawful for any person to manufacture, sell, give or distribute a controlled substance.

(a) Any person who violates this section with respect to a controlled substance classified in Schedule I or II shall upon conviction be imprisoned for not less than five nor more than forty years and fined not more than twenty-five thousand dollars; any person upon a second or subsequent conviction of a violation of this section involving an opiate or synthetic opiate drug, may in the discretion of the court or jury imposing the sentence, be sentenced to confinement in the penitentiary for a term of life imprisonment or for any period not less than five years; provided, that if such person prove that he gave, distributed or possessed with intent to give or distribute a controlled substance classified in Schedule I or II other than marijuana only as an accommodation to another individual and not with intent to profit thereby nor to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon such controlled substance, he shall be guilty of a Class 5 felony; and provided further, that if such person prove that he gave, distributed or possessed with intent to give or distribute marijuana only as an accommodation to another individual and not with intent to profit thereby nor to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon such controlled substance, he shall be guilty of a Class 1 misdemeanor.

At the time of petitioner's conviction marijuana was a Schedule I drug. Va.Code § 54-524.84:4(d)(1) (Supp.1977). Petitioner challenges the inclusion of marijuana within Schedule I as arbitrary and irrational in light of the statutory criteria for Schedule I substances. Va.Code §§ 54-524.84:1-3 (Repl.Vol.1978).

The petitioner offers...