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FIFTH DISTRICT IGNORES HIGH COURT’S RULING A state appeal court on Thursday refused to follow a controversial California Supreme Court ruling on search-and-seizure procedures, saying that the high court has “impliedly overruled” the decision in subsequent cases. In ignoring In re Tyrell J.,8 Cal.4th 68 — a 1994 decision that permits evidence from otherwise illegal searches as long as the defendant was subject to probation searches — Fresno’s Fifth District Court of Appeal said marijuana confiscated from a Fresno County boy shouldn’t have been admitted into evidence. The justices ruled that Tyrell J.has been undermined by Supreme Court rulings in 2000′s People v. Robles, 23 Cal.4th 789, and 2003′s People v. Sanders, 31 Cal.4th 318. The latter held that whether a search is reasonable should be based on “the circumstances known to the officer when the search is conducted.” “Because the high court itself dismantled the foundation and cornerstones of Tyrell J.,we reject [the state's] argument that we are bound to follow Tyrell J.,” Justice Steven Vartabedian wrote. “After Sanderswas published, the vitality of Tyrell J.remains an unanswered question.” Justices Nickolas Dibiaso and Thomas Harris concurred. In Thursday’s decision, Fresno police officers had found marijuana on a boy identified only as Joshua J., relying on Tyrell J.to justify what could have been an illegal search by noting that the boy was on juvenile probation and subject to searches. The Fifth District said that while the high court’s ruling in Sandersdealt with adult probationers, the justices in a footnote left open the possibility that its reasoning could be extended to minors. “The fact that Joshua later advised he was on probation,” Vartabedian wrote, “cannot justify the admission of the fruits of the officers’ illegal conduct committed against Joshua, the juvenile, any more than such admission of evidence would be allowed against an adult.” The full text of In re Joshua J.,F046430 and F046858, will appear in Monday’s California Daily Opinion Service. — Mike McKee DECISION UPHOLDS PROP 209 POLICIES A law providing a loophole in Prop 209, the anti-affirmative action measure, was struck down Thursday by a Sacramento County Superior Court judge. Prop 209 author Ward Connerly and the Sacramento-based Pacific Legal Foundation hailed Judge Thomas Cecil’s decision as a victory in their fight against preferential treatment in public policy. Prop 209, approved by voters in 1996, banned preferential treatment in public employment, education and contracting on the basis of race, sex, color, ethnicity or national origin. Cecil struck down a 2003 law authored by Assemblyman Mervyn Dymally, D-Compton, and signed by Gov. Gray Davis, that, in part, says measures designed solely to advance an under-represented or under-protected group would be allowed. “This is a happy day for me personally,” Connerly told reporters. “We’re putting another nail in the coffin of preferences.” The Pacific Legal Foundation brought the case on behalf of Connerly in 2003. A separate 2004 Third District Court of Appeal decision, C& , 122 Cal.App.4th 284, also declared the 2003 law unconstitutional, but PLF lawyers maintained that the ruling did not extend to private rights of action. Tom Dresslar, a spokesman for Attorney General Bill Lockyer, downplayed Cecil’s ruling, calling Connerly’s comments “hyperbole.” “We had argued that [the Third District] ruling rendered this case moot, but nevertheless on shaky ground, they decided to pursue it,” Dresslar said. He added that Lockyer had not yet decided whether to appeal Cecil’s decision, Connerly v. Davis, 03AS05154. — Jill Duman

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