Petition — Rumpf v. United States

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IN THE sais

Supreme Court of the United States

No.

JOHN RUMPF, JOANNE HANSON,

GLORIA MASTERS and

GARY JAMES GRIFFIN,

Petitioners,

versus

THE UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

CLARENCE D. MOYERS

Attorney for Petitioners

John Rumpf, Gloria Masters

and Gary James Griffin

1011 North Mesa

El Paso, Texas 79902

JERRY D. PATCHEN

Attorney for Petitioner

Joanne Hanson

8303 Southwest Freeway

Suite 909

Houston, Texas 77074

TABLE OF CONTENTS

PAGE

I I pce s aden ends ke chew is bheene

PI Sis Ridac esas seach cue Ciite sc ew oe

Cert Rae e E Ee Cee DEN ME

Constitutional Provisions Involved ............ 23

Gg RSP Sere rere ee ETT

Reasons for Granting the Writ ................ 49

ER AR ne ER Oe TE eee ET a

PE ks Gin bk bv «ba cas 4 54 b< bed dea) eee

Opinion of the U. S. Court of Appeals,

PE i 5 Bh SFR a ceca cin és ce icei ns s) Se

TABLE OF AUTHORITIES

Abney v. United States 1977, 431 U.S. 651 .... 5, 6

Arizona v. Washington .... U.S. .... 46 U.S.L.W. 5

Coolidge v. New Hampshire 1971, 493 U.S. 443... 9

Downum v. United States 1963, 372 U.S. 734 .... 7

Green v. United States 1957, 355 U.S. 184 ....... 5,

Spinelli v. United States 1969, 393 U.S. 410 ..... 9

United States v. Haala 1976, 532 F.2d. 1324...... 8

United States v. Jorn 1971, 400 U.S. 470 ........ 7

Wade v. Hunter 1949 336 U.S. 684 .............. 7

QW), Pra

Ae Wit xh

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

JOHN RUMPF, JOANNE HANSON,

GLORIA MASTERS and

GARY JAMES GRIFFIN,

Petitioners,

versus

THE UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

Petitioners respectfully pray a Writ of Certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Tenth Circuit entered

in this proceeding on May 4, 1978.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Tenth Circuit is reported at...... 7 BARES

a copy of which appears in the Appendix hereto.

JURISDICTION

On May 4, 1978, the United States Court of Appeals

for the Tenth Circuit rendered rath. yea

Petitioners’ convictions in the Uni States District

Court for the District of New Mexico. Petitioners filed

a petition for rehearing with suggestion for rehearing

en banc and said petition was denied on June 8, 1978.

This Court’s jurisdiction is invoked under Title 28,

United States Code, Section 1254(1).

QUESTIONS PRESENTED

I,

Whether notice of appeal from a pretrial order

denying a motion to dismiss an indictment on double

jeopardy grounds serves to divest the lower court of

jurisdiction to proceed with a subsequent trial.

Il.

Whether the defendants in this case were deprived

of their valued right to have their trial completed by a

particular tribunal, in violation of their rights under

the Double Jeopardy Clause of the Fifth Amendment,

where a mistrial was declared (without the request or

consent of three of the four defendants) when the pro-

secutor improperly referred, in his opening statement,

to certain inadmissible evidence.

Il.

Whether the arrests, search and seizure of Petitioners

were based upon probable cause and justified by exigent

circumstances so as to preclude the warrant require-

ment of the Fourth Amendment to the United States

Constitution.

CONSTITUTIONAL PROVISION INVOLVED

The following portion of the Fifth Amendment of

the Constitution of the United States:

“ ..nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;”

The following portion of the Fourth Amendment of

the Constitution of the United States:

ie a

Mee:

CP aihale has)

ee emen

3

“... the right of the people to be secure in their per-

sons, houses; papers, and effects against unlawful

searches and seizures . . . and no warrants shall issu

but upon probable cause. . .”

STATEMENT OF FACTS

On April 21, 1976, six (6) agents of the Drug En-

forcement Administration entered the premises of a

farm near Moriarty, New Mexico, with guns drawn

and arrested Defendants Rumpf, Hanson, and Masters.

A subsequent (virtually contemporaneous) warrantless

search of the area revealed a quantity of marijuana

(1500 pounds) in a camper-trailer parked just inside

a barn located behind the farmhouse. Several hours

later, Defendant Griffin arrived at the premises and was

also arrested. At the time of the arrest, search, and

seizure, the agents did not have a search warrant or an

arrest warrant. The sum total of the facts and circum-

stances known to the agents at the time of the arrests,

search, and seizure were as follows: (1) Two vehicles

were observed turning off Interstate 40 onto State Road

117 at 4:00 p.m. on April 20, 1976; (2) John Rumpf

was known to be the driver of the Chevrolet van; (3)

John Rumpf once rented a storage locker which, some-

time subsequent to his abandonment thereof, was dis-

covered to contain about an ounce of marijuana; (4)

State Road 117 was believed to be an area frequented

by narcotics smugglers, was called “Smuggler’s Alley”

by people in the area, and was the scene of a marijuana-

loaded airplane crash several months before; (5) at 7:00

a.m. on Aprii 21, 1976, the same:two vehicles were

observed turning onto Interstate 40 from State Road

117, and proceeding toward Albuquerque; and (6) the

camper-trailer towed behind one vehicle appeared to

be “heavily loaded” since it swayed whenever it

changed lanes.

Based upon the foregoing, and nothing more other

than the suspicions and conclusions of the agents’ the

1. The sins Enforcement ree ere wesats pelicved “a

venture was in p r use of the “ le

iavelval the vehicles used, and Whe abt.” (T.R. 45) 1

oY ba) hat ee Re ae dt oak ona Wak) i id all ial Sou te aS

4

arrests were made and the search conducted. All four

Petitioners were charged with on of marijuana

with intent to distribute, in violation of 21 U.S.C. 846.

Petitioners Rumpf, Hanson and Masters were also

char, with on of marijuana with intent to

te, in violation of 21 U.S.C. 841(a) (1).

The first trial commenced on July 12, 1976. The jury

was empanelled and sworn. During the course of the

prosecutor’s opening statement, certain statements were

made which were prejudicial only to Defendant Han-

son. None of the Defendants objected to this statement

at the time it was made, but at the conclusion of the

opening statement, Mr, Patchen iyi praniy Bhs

Defendant Hanson) asked to approach the ch,

whereupon Counselor Patchen requested a mistrial.

None of the other Defendants joined in the motion

for mistrial or for that matter, the objection to the

prosecutor’s remarks. Nevertheless, with uncharacter-

istic abruptness the trial court immediately declared a

mistrial and discharged the jury.

That afternoon each of the Defendants filed Motions

to Dismiss Indictment alleging that reprosecution would

violate their rights under the Double Jeopardy Clause

of the Fifth Amendment. Defendant Hanson’s motion

was predicated on the theory that where a mistrial

declaration results from conduct of a nature more cul-

pable than mere negligent error or even overzealous

mistake, and amounts to cata exp y overreaching,”

the policies of the Double Jeopardy Clause are offended

and reprosecution is precluded. The other three De-

fendants, Rumpf, Masters, and Griffin, based their jeop-

ardy motion on their fundamental right to have their

trial completed by the first jury empanelled, absent a

request for a mistrial or the manifest necessity for

granting one.

A Motion To An Indictment On

Double Jeopardy Grounds Serves To Divest The

PN iB 6 od Se |

Lower Court Of Jurisdiction To Proceed With A

Subsequent Trial.

This Court’s opinion in Abney v. United States

(1977), 431 U.S. 651 confirmed the proposition that'a

pretrial denial of a double ae claim is a final deci-

sion within the meaning of 28 U.S.C. $ 1291 and confers

jurisdiction on the Court of Appeals. Such an order is

immediately appealable prior to further District Court

action; ‘The rights conferred on a criminal accused by

the Double Jeopardy Clause would be significantly un-

dermined if cn review of double jeopardy claims

were postponed until after conviction and sentence.”

id. at 660-661. Thus, the filing of notice of appeal by

Petitioners in the instant case served to divest the Dis-

trict Court of jurisdiction to proceed with the second

trial, and anything which occurred in the trial court

thereafter and prior to the actual appeal of the jeopardy

issue is a nullity.

The majority opinion acknowledges the holding of

Abney, supra.

**.. Because of this focus on the ‘risk’ of conviction,

the guarantee against double jeopardy assures an

individual that, among other things, he will not be

forced, with certain exceptions, to endure the per-

sonal strain, public embarrassment, and expense of

a criminal trial more than once for the same offense.

It thus protects interests wholly unrelated to the

propriety of any subsequent conviction...”

(Opinion P.5)

Citing Green v. United States, 355 U.S. 184 and Arizona

v. Washington, .... U.S. ...., 46 U.S.L.W, 4127

‘“.. Even if the first trial is not completed, a second

rosecution may be grossly unfair. It increases the

financial and emotional burden on the accused, pro-

longs the period in which he is stigmatized by an

unresolved accusation of wrongdoing...” Jd.

The focus of the Court of Appeals’ decision is on the

protection from,a second trial. The majority then con-

cludes that since the second trial has already taken

place, “(T) he pretrial protection from a second trial...”

(Opinion, P.5) cannot be accomplished. In essence,

Abney is not applicable once the guarantees of the Fifth

Amendment Double Jeopardy Clause have been violated

by the District Court’s refusal to permit an interlocutory

appeal. According to this interpretation such guarantees

are not absolute but subject to the discretion of the trial

judge. As pointed out in Judge McKay’s dissenting

opinion in the instant case,

“(S) uch a holding is an open invitation to trial courts

to disregard Abney. Under the majority yar the

trial courts may ignore a notice of appeal from a pre-

trial denial of motion to dismiss on double jeopardy

unds and proceed instead to trial secure in the

Enowledge that the court of appeals will not vacate

the conviction for lack of jurisdiction. This result is

precisely what the Supreme Court intended to elim-

inate...”

The problem with the Appeals Court reasoning is

that it focuses on the hardships an accused endures by

a subsequent prosecution, but allows no remedy to

insure these hardships are avoided in accordance with

the Double Jeopardy Clause guarantees. If this Honor-

able Court were to permit the Terith Cireuit decision to

stand, the fundamental policy of Abney wouid be sub-

verted. A double jeopardy challenge would be review-

able before a subsequent trial only if the trial judge

chose to permit such a challenge. Clearly this was not

this Court’s intent expressed in Abney. The Supreme

Court should grant certiorari and reverse the Appeals

Court, instructing that notice of appeal of a pretrial

denial of a double jeopardy claim divests the lower court

of jurisdiction to proceed, and that any action by the

trial court after said notice of appeal is a nullity.

Il.

Whether The Defendants In This Case Were De-

Of Their Valued Right To Have Their Trial

pleted By A Particular Tribunal, In Violation

7

Of Their ts Under The Double J Clause

Of The -Amendment, Where A Was

Declared (Without The Request Or Consent Of

Three Of Four Defendants) When The Prosecu-

tor Ref In His Statemen

nit oe eo erred, Opening t,

Petitioners Rumpf, Masters, and Griffin had an in-

terest in and a right to have their trial completed by

the particular tribunal which first commenced con-

sideration of their case. United States v. Jorn, 1971, 400

U.S. 470; Wade v. Hunter, 1949, 336 U.S. 684. “The

discretion to discharge the jury before it has reached

a verdict is to be exercised ‘only in very extraordinary

and striking circumstances’...” Downum v. United

States, 1963, 372 U.S. 734, at 736. Jorn requires a mani-

fest necessity for granting a mistrial without the request

of a defendant, as in the herein case. No such request

was made and no manifest necessity existed since no

prejudice resulted to Petitioners Rumpf, Masters, and

Griffin by the prosecutor’s remarks pertaining to Peti-

tioner Hanson. In this situation, the Double Jeopardy

Clause prohibits reprosecution. Jeopardy had attached;

the defendants were deprived of their “valued right to

have their trial completed by a particular tribunal’;

ihere was no “imperious necessity” to declare a mistrial

or other countervailing consideration sufficient to justify

abrogation of the Fifth Amendment right.

Accordingly retrial was barred by the constitution

and the convictions of these defendants must be set

aside.

Ill.

Whether The Arrests, Search And Seizure Of

Petitioners Were Based Upon Probable Cause And

Justified By Exigent Circumstances So As To Pre-

clude The Warrant Requirement Of The Fourth

Amendment To The United States Constitution.

The accepted definition. of probable cause requires

facts and circumstances within a police officer’s knowl-

edge supported by reasonably trustworthy information

sufficient to warrant a man of reasonable caution to

believe that the offense had been or was being com-

mitted.” United States v. Haala, 10 Cir., 1976, 532 F.2d.

1324, 1327. The facts and circumstances known to the

Seciniosh,jptie drown, aipeetiindtol he aebendaws on

i wn, appre e defendants

conducted their initial search leading to the discovery

of the marijuana were as follows:

(1) Two vehicles had been observed turning off [H-

40 onto State Road 117 at 4:00 p.m. on April 20, 1976.

(2) John Rumpf was known to be the driver of the

Chevrolet van.

(3) John Rumpf had once rented a storage locker

which, upon his abandonment thereof had subsequently

been discovered to contain about an ounce of mari-

juana.” State Road 117 was believed to be an area fre-

quented by narcotics smugglers and, in fact, several

months before, a marijuana-loaded airplane had

crashed in the area.

(4) At 7:00 a.m. on August 21, 1976, the two vehicles

had been observed turning onto IH-40 off of State Road

117 and proceeding toward Albuquerque.

(4) The camper-trailer appeared to be “heavily

loaded” since it swayed whenever it changed lanes.

The foregoing is literally the totality of the informa-

tion and knowledge possessed by the agents when the

search was initiated (i.e. when they burst into the

premises, guns drawn, apprehended the subjects and

conducted the search). Admittedly, “probable cause”

does not contemplate anything approaching “guilt

beyond a reasonable doubt” or such evidence of infor-

mation as would lead a prudent man to convict; but,

on the other hand, it is certainly something more than

: is Ci ce, and this circumstance alone,

led the agents to ude that Mr. Rumpf was a “known nar-

cotics omar. (Tr. 108-109). ery this Cor poem

tion “is en to no weight” in ining probable cause.

reer v. United States, 1969, 393 U.S. 410. 414, 89 S.Ct.

588.

9

“mere suspicion.”’ Probable cause does require proba-

bility — i.e. the chances are more likely than not that

the t has engaged in or is engaged in illegal con-

duct. If every individual driving a heavily-loaded vehi-

cle on IH-40 in the vicinity of State Road 117 is “prob-

ably” transporting a load of contraband, the “‘probable

cause” requirement of the Fourth Amendment is mean-

ingless, indeed. The facts in Spinelli v. United States,

1969, 393 U.S. 410; 89 S.Ct. 584, are virtually indistin-

guishable from the instant case on the probable cause

issue and the same holding — no probable cause —

should obtain.

Even if “a prudent man” could somehow conclude

on the basis of the above enumerated skimpy informa-

tion, that the camper-trailer did, in fact, “probably”

contain contraband (i.e. if “probable cause” could some-

how be found to exist) that circumstance, by itself, is

insufficient to satisfy the requirements of the Fourth

Amendment for “no amount of probable cause can jus-

tify a warrantless search or seizure absent ‘exigent cir-

cumstance.’”’ Coolidge v. New Hampshire, 403 U.S. at

468, 91 S.Ct. at 2039.

The suspects had been under surveillance for more

than seventeen hours at the time the search took place,

and there is no possible factual basis for a finding of

requisite “exigency”. There was simply no danger that

the contraband might escape before the facts could be

presented to a detached magistrate.

It is thus readily apparent that at the time the war-

rantless search was conducted the agents lacked both

probable cause and exigent circumstances.

The contraband seized should have been suppressed

by the trial court as the seizure was violative of Peti-

tioners’ rights under the Fourth and Fifth Amendments

to the United States Constitution.

10 | 11

CONCLUSION | CERTIFICATE OF SERVICE

For the foregoing reasons, it is respectfully submitted

the ; ; I, CLARENCE D. MOYERS, do hereby certify that

printer g petition for a writ of certiorari should be | on this 14th day of July 1978 I faivardod fives Gplen

of the foregoing Petition for Writ of Certiorari to the

Solicitor General, Department of Justice, Washington,

Respectfully submitted, D.C, 20530.

CLARENCE D. MOYERS CLARENCE D. MOYERS

Attorney for Petitioners

JOHN RUMPF, GLORIA MASTERS

and GARY JAMES GRIFFIN

1011 North Mesa Street

El Paso, Texas 79902

JERRY D. PATCHEN

Attorney for Petitioner

JOANNE HANSON

8383 Southwest Freeway

Suite 909

Houston, Texas 77074

BY

’ CLARENCE D. MOYERS

' Ay

’ ty

la

FILED

United States Court

of Appeals

Tenth it

May 4, 1978

HOWARD K. PHILLIPS

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 76-1891-92-93-94

UNITED STATES OF AMERICA, |

Appeal From The

a, United States

v. District Court

JOHN RUMPF, | For The District

f N

JOANNE HANSON, pe eit sho

GLORIA MASTERS, and :

GARY JAMES GRIFFIN, ai au

Appellants. |

Jerry Patchen, Houston, Texas, Gerald M. Birnberg,

Bellaire, Texas, Clarence Moyers, Bisbee, Arizona

(Samuel A. Francis, Albuquerque, New Mexico, with

them on the Brief), for Appellants.

' Robert Bruce Collins, Assistant United States Attorney

(Victor R. Ortega, United States Attorney, with him on

the Brief), for Appellee.

Before SETH, Chief Judge, BARRETT and McKAY,

Circuit Judges.

SETH, Chief Judge.

eka

2a

The four defendants — convicted ae conspiracy >

possess marijuana with intent to distribute, ra

21 U.S.C. $ rr and have taken this joint appeal. The

first trial ended with a mistrial, and the conviction

concluded the second trial.

The appellants assert that there was no probable

cause for their arrest, nor for the search of farm-

house and barn where they were arrested and where

the marijuana was found. The arrests and the initial

search were made by DEA agents without warrants.

The appellants also argue that their motions raising

the issue of double jeopardy, following the trial court's

declaration of a mistrial, were erroneously denied, and

further that defendants asked the trial court for an

appeal from this denial, which request served to divest

the trial court of jurisdiction to proceed with the second

trial. In so ur, the appellants rely on Abney v.

United States, 431 U.S. 651, which was decided during

the course of this appeal. This Circuit had not passed on

the issue of appealability of a denial of a motion based

on double jeopardy.

A mistrial was declared at the conclusion of the open-

ing statement for the prosecution at the first trial. The

Assistant United States Attorney mentioned in this

statement that there would be evidence as to the search

of a farmhouse where papers of the defendant Hanson

would be found. He also said, ‘““They will also find three

bags of marijuana and two syringes.” The record shows

that the attorneys for the defendants and the Assistant

United States Attorney who made the opening state-

ment had discussed just before a woe ager of =

syringes. The attorney, Mr. Jerry Patchen, who wi

others had entered an appearance for defendant Han-

son, advised the court when the Government’s opening

statement was concluded that he wished to make a

motion. He asked to approach the bench and did so,

as did the other attorneys representing the defendants.

Mr. Patchen immediately said: “I would like to move

for a mistrial because of the prosecutor’s reference to

the two syringes that were found in Joanne Hanson’s

3a

apartment.” He then told the court in effect that in the

conversations that morning between the Assistant

United States Attorney and the attorneys for the de-

fendants (or some of them), it had been agreed that

the — would not be introduced, and also would

not be referred to at trial. The prosecution advised the

court at this bench conference that it had been agreed

that the syringes would not be introduced, but it had

not been agreed that they would not be commented on.

The court without more declared a mistrial. The defense

attorneys at the bench conference other than Mr.

Patchen said nothing whatever. The court then excused

the jury. This was about 11:00 a.m. It appears that the

second trial was then set to start, and did start, at 1:45

.m. that afternoon or about two and one-half hours

ter.

Before the second trial began, all the defendants

moved for dismissal on the ground of double jeopardy.

The motions were denied. The following colloquy then

took place: As to attorney Patchen, he said in part:

‘*... T would like to give notice of appeal of the denial.”’

The court said: “... You have ten days for that any-

way.” Mr. Patchen said there are five Circuits “. . . that

indicate that we are entitled to an interlocutory appeal

...May I give oral notice of appeal.” The court,

“... You certainly may.” The attorney for the other

defendants made a motion to dismiss because of “prior

ants gag The motion was denied, and the attorney

said: ‘‘... May we also request an interlocutory appeal

at this time?” The court said: “Yes. Sure may, but it

will be denied.”’

The court then asked the parties if they were ready

for trial, and they announced they were. The second

trial began, and no further action or procedure as to

the “appeals” took place.

The defendants do not urge here that they asked for

nor were denied any continuance or delay in the second

trial to permit an appeal to be perfected or for any other

purpose, and the record shows none. The second trial

thus proceeded, and it appears that the matter rested

4a

there until this 8 09 was perfected. The a nts

urged the appealab of the denial of the motion based

on double jeopardy before the decision in Abney v.

United States, 431 U.S. 651, as the issue had not been

decided in this Circuit. Abney was decided during the

pendency of this appeal, as mentioned above.

The Supreme Court in Abney points out that the need

for considering a denial of a double jeopardy motion to

be final for the purposes of Sgr is to allow the asser-

tion of the constitutional before the defendant is

confronted with a second trial. The court refers to pre-

trial proceedings to consider the motion and to appeal

the double jeopardy motion if denied by the trial court.

Thus the protection is against being subjected to or

threatened with a second trial, and the attendant delay.

The protection is, of course, broader than against double

punishment.

In Abney v. United States, 431 U.S. at page 661, the

Court said:

RA ona Ag os Roa eden ag wor iog any a4 Rory

guarantee against dou e jeopard assures an indivi t,

song other ttl he will not be forced with certain excep-

tions, to endure personal strain, public embarrassment,

and expense of a criminal trial more once for the same

offense. It thus protects interests wholly unrelated to the

propriety of any subsequent conviction . . .”

The Court there also quoted from Green v. United States,

355 U.S. 184, where reference is made to subjecting the

defendant to the embarrassment, expense, and ordeal,

and compelling him to live in a continuing state of

anxiety and insecurity. The Court in Arizona v. Wash-

ington, .... U.S. ....,46 U.S.L.W. 4127, described the

protection by saying:

“. .. Even if the first trial is not completed, a second prose-

cution may be grossly unfair. It increases the financial and

emotional en on the accused, prolongs the period in which

he is stigmatized by an unresolved accusation of wrong-

doing...

The courts of appeal which reached the same conclusion

before Abney followed the same reasoning, and made

the same explanation for the need for a pretrial review.

5a

See United States v. Barket, 530 F.2d 181 (8th Cir.);

United States v. DiSilvio, 520 F.2d 249 (3d Cir.) ; United

States v. Beckerman, 516 F.2d 905 (2d Cir.); Thomas

v. Beasley, 491 F.2d 507 (6th Cir.); United States. v.

Lansdown, 460 F.2d 164 (4th Cir.).

This is indeed the basic reason for the appealability

conclusion, but here the defendants have already had

a second trial. The “pretrial protection” from a second

trial, until the double jeopardy issue is decided, cannot

here be accomplished.

The reasons in Abney, the emphasis by the Court on

pretrial protection, cannot be achieved. The second

trial had already taken place before Abney was decided.

We must hold in these circumstances that Abney is not

applicable. A pretrial procedure to protect against a

second trial cannot be utilized. If Abney were literally

applied it could lead to a third trial under defendants’

theory, and the problem would be compounded. Thus

we cannot apply the Abney’s construction of 28 U.S.C.

$ 1291 to these circumstances. Abney is a decision on

28 U.S.C. $ 1291, and is as well a decision on the time for

a challenge. It thus decides how and when a constitu-

tional right may be asserted. Any application of Abney

would lead to an i..congruous result in the circum-

stances before us. ' *». ‘ration has been given to the

application of L ~ *, Walker, 381 U.S. 618, and

Carafas v. LaVa U.S. 234.

It is also app’.ent that defendants made no effort,

other than the ors. notice of appeal, to have the matter

determined before the second trial, and made no effort

to perfect an appeal, if indeed one had been taken. The

shortness of time and the related factors are apparent,

but the appeal could well have been perfected as the

second trial progressed or separately thereafter. This

me te must proceed on the basis that the double jeop-

ardy issue is part of this appeal, and that the trial court

was never divested of jurisdiction. We can only consider

the double jeopardy claim of the defendants now since

a pre-second trial consideration is not possible. The

rH chosing thus present this constitutional issue as part

6a

of this appeal and first consideration should be given

to the co ence of the motion for a mistrial voiced

7 Mr. Patchen, one of the attorneys for defendant

anson. As described above, this motion was made at

the end of the opening statement of the prosecution.

Mr. Patchen was the attorney who voiced the motion

for a mistrial. The record does not show whether he

moved only on behalf of defendant Hanson or for the

others as well. He just said: “‘I move...” etc. The other

defense attorneys were at the bench, and made no state-

ments whatever. They remained silent and the court

proceeded. Under these circumstances, it is reasonable

to construe their silence to be acquiescence in the state-

ments of Mr. Patchen and in the motion for mistrial.

They made no objection to the mistrial as they had

adequate opportunity to do, and did not disaffirm the

statement of Mr. Patchen. Under the circumstances,

they were obligated to speak to express their position

if they did not agree with the motion.

The docket as to the entry of appearances shows that

Mr. Francis entered his appearance as attorney for

each of the defendants. Mr. Moyers represented de-

fendant Hanson and defendant Masters at trial and

defendant Rumpf at sentencing. In view of the cross-

representation of the several defendants, and their

silence at the bench conference, we must hold, as above

indicated, that all defendants acquiesced and thereby

participated in the motion for mistrial. They had an

obligation to speak, and their silence was an agree-

— in the course and position of the one who did

speak.

The consequence of the motion for mistrial under

these circumstances is clear. Arizona v. Washington,

.... US. ...., 46 U.S. L.W. 4127, or Green v. United

States, 355 U.S, 184, is a starting point, as could be

United States v. Jorn, 400 U.S. 470, or United States v.

Dinitz, .... U.S. ...., 96 S.Ct. 1075. United States v.

pe fake U.S. 470; Green v. United States, 355 U.S. 184,

and United States v. Buzzard, 540 F.2d 1383 (10th Cir.),

establish that by moving for a mistrial, a defendant

7a

waives objection thereto if one is declared. This follows

in the absence of bad faith conduct by the prosecution

or the judge, United States v. Dinitz, .... U.S. ...., 96

S.Ct. 1075, or in the absence of governmental action

intended to provoke a motion for mistrial or to secure

a more favorable tribunal. If such bad faith is shown,

there : no waiver of double jeopardy objection to a

The defendants assert that the prosecution deliber-

ately sought to get the two syringes into evidence, but

the record does not support this argument in any way.

The record shows only a misunderstanding between

defense counsel and the prosecution as to a conversa-

tion before trial as to whether the syringes would be

commented on or testified to. The reference to the

syringes in the opening statement cannot be held to be

“bad faith” conduct under Dinitz. Bad faith does not

include mistakes or errors. United States v. Jorn, 400

U.S. 470.. There was no conduct to provoke the motion

for mistrial so as to relieve defendants from the conse-

quences of a waiver of objections thereto.

The action of the trial judge in granting the motion

for mistrial was done quickly, but the issue was narrow

and uncomplicated. The defendants assert that the

action was hasty, but again the matter was clear-cut,

and in any event, it was taken on the request of the

defendants.

We have held that the burden is on the defendant to

establish the facts supporting his motion for dismissal

on the ground of double jeopardy. United States v. Wil-

shire Oil Co. of Texas, 427 F.2d 969 (10th Cir.). This

holding must still prevail under United States v. Abney,

where the matter is to be disposed of in pretrial pro-

ceedings to include evidentiary hearings. This doctrine

may have to give way to unusual circumstances where

the proof may be in the control of the prosecution, or

where it can only be established by the use of Govern-

ment witnesses. In the situation before us, however,

there are no factors precluding the application of the

doctrine.

8a

We thus hold that the second trial here appealed from

was not shown to be barred by the prohibition against

double jeopardy. |

As to the arrests and the search, the defendant Griffin

was charged only with conspiracy to possess with an

intent to distribute marijuana. He claimed no interest

in the premises searched nor in the items seized. Pos-

session by Griffin was not an element of the charge

against him. He had no standing to challenge the search

and seizure under Brown v. United States, 411 U.S, 223.

As to the other defendants, the record shows that the

DEA agents learned that a load of marijuana being

flown from Mexico was going to land on State Road 117

south of Grants, New Mexico. The defendants were

observed driving a Chevrolet Suburban and a pickup

with a camper trailer into the area. The agents testified

that these vehicles had been observed in connection

with incidents involving marijuana. The vehicles went

down State Road 117 and spent the night. The next

morning the agents saw them emerging from the road

on to the interstate highway. They followed the vehicles

about eighty to ninety miles to a farm near Moriarty,

New Mexico. The agents testified that the trailer was

heavily loaded and swayed. When the agents arrived

at the farm they entered it and found marijuana in

plain sight in the barn and smelled it in the camping

trailer which was parked in the barn. The defendants

were arrested. The agents had no warrant for search

or arrest at the time. Later a search warrant was ob-

tained, and the house was searched.

The Government urges that it was not possible dur-

ing the time the agents were following the vehicles for

them to secure warrants. The defendants argue there

was no probable cause for the arrests and the search of

the barn which revealed a large quantity of marijuana.

The record demonstrates that there was probable

cause for the arrests and the search. The whole train

of events, the prior connection of the vehicles with

marijuana transactions, and the information that a

plane would arrive were sufficient. The need to follow

A,

9a

the defendants, and to take action immediately revealed

exigent circumstances. See Chambers v. Maroney, 399

U.S. 42; United States v. Sigal, 500 F.2d 1118 (10th

Cir.) ; United States v. Miller, 460 F.2d 582 (10th Cir.).

We have held that smell alone is sufficient probable

cause for a search. United States v. Bowman, 487 F.2d

1229 (10th Cir.); United States v. Anderson, 468 F.2d

1280 (10th Cir.).

We must hold that there was probable cause for the

arrests and search. There was clearly sufficient evidence

to support the convictions.

AFFIRMED.

ib

Nos. 76-1891, 76-1892, 76-1893, 76-1894—

UNITED STATES v. JOHN RUMPF, et al.

McKAY, Circuit Judge, dissenting as follows:

The majority today holds that the decision of the

Supreme Court in Abney v. United States, 431 U.S. 651

(1977), is not applicable when a defendant lodges

notice of appeal from a pretrial order denying a motion

to dismiss an indictment on double jeopardy grounds

but cannot pursue the matter because of the uncertainty

in the law with respect to its appealability. I disagree.

Prior to Abney, decided during the pendency of this

appeal, five circuits had held that denials of pretrial

motions to dismiss indictments on double jeopardy

grounds are “final decisions” from which appeals may

be taken pursuant to 28 U.S.C. § 1291 (1970), as inter-

preted by Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541 (1949). United States v. Barket, 530 F.2d 181

(8th Cir. 1975), cert. denied, 429 U.S. 917 (1976);

United States v. DiSilvo, 520 F.2d 247 (3d Cir.), cert.

denied, 423 U.S. 1015 (1975); United States v. Becker-

man, 516 F.2d 905 (2d Cir. 1975); Thomas v. Beasley,

491 F.2d 507 (6th Cir.), cert. denied, 417 U.S. 955

(1974); United States v. Lansdown, 460-F.2d 164 (4th

Cir. 1972). Two circuits had adopted the contrary posi-

tion, holding that pretrial denials of motions to dismiss

based on double jeopardy are appealable only as part

of an appeal from the trial court’s ultimate conviction.

United States v. Young, 544 F.2d 415 (9th Cir.), cert.

denied, 429 U.S, 1024 (1976); United States v. Bailey,

faa 833 (5th Cir.), cert dismissed, 423 U.S. 1039

This court had not decided the issue at the time of

appellants’ trial in the district court. When the trial

court denied her pretrial motion to dismiss, appellant

Hanson immediately brought to the attention of the

court the above cited cases and stated her desire to “give

notice of appeal of the denial.’’ Record, vol. 4, at 188.

The court responded “You have ample time for that.

2b

You have ten days for that anyway.” /d. Appellant

Hanson ary Sap asked, ‘“‘May I give oral notice of

appeal?” Jd. The court answered, “Yes, you certainly

may.” /d. The court then expressly acknowledged her

request for an interlocutory appeal and ruled: “Fine,

it will be denied.” Jd. at 190. The other appellants made

identical motions to dismiss, gave ora] notice of appeal,

and requested an interlocutory appeal. /d. at 190-91.

These motions and requests for appeal were similarly

denied by the district court. Jd. The denial of pretrial

motions to dismiss because of double jeopardy were

incorporated in appellants’ consolidated appeals taken

from their ultimate convictions.

The threshold issue before us is whether appellants’

notices of appeal had the effect of depriving the trial

court of furisd iction to proceed with the subsequent trial

and convictions. If the court lacked jurisdiction to pro-

ceed, the subsequent trial, with its alleged errors, was

a nullity and therefore not subject to our review.

This court has pre\iously observed that “all of the

cases hold that an appeal divests the trial court of juris-

diction over the case, but that presupposes that there is

a valid appeal from an appealable order.”’ Euziere v.

United States, 266 F.2d 88, 91 (10th Cir. 1959), vacated

on other grounds, 364 U.S. 282 (1960) (emphasis

added). See Arthur Anderson & Co. v. Finesilver, 546

F.2d 338, 340 (10th Cir. 1976), cert. denied, 429 U.S.

1096 (1977); Resnik v. La Paz Guest Ranch, 289 F.2d

814,818 & n.2 (9th Cir. 1961); 9 Moore’s Federal Prac-

tice 9 203.11, at 734-40 (2d ed. 1975). The necessary

corollary of the above rule is that ‘“la]n attempt to

appeal a non-appealable order remains just that, an

attempt. It is a nullity and does not invest the appellate

court with jurisdiction, and consequently does not divest

the trial court of its jurisdiction.” Euziere v. United

States, 266 F.2d at 91. The critical questions for our

consideration are: (1) whether the denial of appellants’

pretrial motion for dismissal on double jeopardy

grounds is an “appellable order,” and (2) whether

appellants made a “valid appeal.”

3b

At the time appellants’ motion to dismiss the indict-

ment on double erie grounds was denied, this court

had not decided whether such a denial was appealable.

As noted above, five circuits had found this decision

REN while two circuits had found it proces tm

able. It is clear, however, that the trial court considered

his decision on this motion to be pc sate men” See

Record, vol. 4, at 187-91. In Abney the Supreme Court

agreed with the position of the majority of circuit courts

and held that “pretrial orders rejecting claims of for-

mer jeopardy ... constitute ‘final decisions’ and thus

7 9p4 ee jurisdictional prerequisite of $§ 1291.” 431

», at °

Since Abney was decided during the nape e of this

gp appellants’ case falls withi e ambit of the

e reiterated in Linkletter v. Walker, 381 U.S. 618,

627 (1965), “that a change in law will be given effect

while a case is one direct review.” This principle, first

enunciated in United States v. Schooner Peggy, 5 U.S.

(1 Cranch), 64, 68-69 (1801), applies to changes in case

law, Carafas v. LaVallee, 391 U.S. 234, 241 (1968),

Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538,

541-43 (1941), as well as to statutory changes, Car-

penter v. Wabash Ry., 309 U.S. 23 (1940), and adoption

of constitutional amendments, United States v. Cham-

bers, 291 U.S, 217 (1934). Under Linkletter we are

bound by the Abney decision. We must hold that the

denial of appellants’ pret:ial motion to dismiss the in-

dictment on double jeopardy grounds is an appealable

order.

prot decided that the pretrial order properly could

be appealed to this court—thereby depriving the district

court of jurisdiction to proceed with the case—we must

decide whether appellants actually did make a valid

appeal. We recent aa aati this very issue in Arthur

nog ie & Co. v. Finesilver, 546 F.2d at 340-41, where

we stated;

An unpublished opinion in No. 75-1297, Burnworth v.

Salefish gg eng says that the filing of a notice of appeal

deprives the district court of subject matter jurisdiction. See

4b

Federal Practice {| 203.11, pp. 735-740. In

10 Cir., 266 F.24 '88, 91, vacated

‘S. 282,'80 S.Ct. 1615, 4 L.Ed. 2d

menti ae pear ee

it

ah

s 38

there is a valid appeal from an appeala

The Circuits disagree on whether the filing of a notice of

appeal automatically divests a district court of jurisdiction

Some cases hold that there is no retained jurisd romeingts |

First National sores srenm OR s Hirsch, 6 Cir., 535 F

343, 345 n.l.; United States v. Lafko, 3 Cir., 520 F.2d 622,

627; and Williams v. Bernhardt Bros Tughoat Service, Inc.

7 Cir., 357 F.2d 883, 884-885. See also Hovey v. Mc

109 U'S. 150, 157, 3 S.Ct. 136, 27 L.Ed. 888.

ig

i

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a

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oe

8

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a

critical juncture.” In Ruby v. Secretary of United States

9 Cir., 365 F.2d 385, cert. denied 386 U.S. 1011, 87

‘ 2, the Ninth Circuit considered the

in an en banc session. It held, Ibid. at 389, that if

appeal is clearly invalid, the district court may

i tial t with the Ninth Cir-

=>

og8

es

Sy

SS

=

ignore it. We are in essen

the notice of appeal is valid, it may decline to act further until

i tp oF We ce Meeker cours peomsehs rib

Appellants unequivocally gave notice of appeal in

this case which was not deficient by reason of untimeli-

ness or lack of essential recitals. Its deficiency, if any,

was its reference to an order the trial court held was

nonappealable. Although the conflict in judicial au-

thority on the issue of appealability was presented to

the trial court, he did not decline to act further until

disposition of the appeal. Rather, he proceeded with the

case under the mistaken belief that the notice of appeal

was inoperative, Although appellants apparently did

5b

not attempt to seek relief from the court of appeals un-

der 28 U.S.C, § 1651 (1970) and Rule 21, Fed.R.App.P.,

as suggested in Arthur Anderson, their failure to do so

cannot alter the fact that under Abney their notice of

ON was not deficient by reason of its reference to an

order denying dismissal of the indictment on double

jeopardy grounds.

The majority places great weight on the fact that,

after giving notice of appeal, appellants did nothing

more to “perfect” their appeal. Yet Rule 3, Fed.R.App.P.,

specifically states the “(f]ailure of an appellant to take

any step other than the timely filing of a notice of

appeal does not affect the validity of the appeal.’’ Once

the trial court acknowledged and denied appellants’

notice of appeal, they had no obligation to take any

further procedural steps in order to ‘“‘perfect” a valid

appeal. See Walleck v. Hudspeth, 128 F.2d 343, 344

(10th Cir. 1942); 9 Moore’s Federal Practice 4 203.12,

at 740-42 (2d ed. 1975).

According to Euziere, appellants’ valid appeal from

an appealable order terminated the district court’s juris-

diction and vested jurisdiction in the court of appeals.

Since without jurisdiction the subsequent trial and con-

victions were a nullity, the judgment and sentences

entered against appellants must be vacated.

This conclusion is supported by the only other circuit

court opinion on this precise issue. In Moroyoqui v.

United States, No. 77-1505 (9th Cir. Dec. 27, 1977),

the Ninth Circuit considered a case involving facts and

trial court proceedings nearly identical to those now

before us. There a mistrial was declared in the initial

trial when the government introduced information pre-

judicial to appellant. Prior to the second trial the district

court denied appellant’s motion to dismiss the indict-

ment on double jeopardy grounds. The trial court and

appellant “agreed that the appeal would be ‘lodged’

but no attempt would be made to pursue it at that time.”

Id, at 2. Appellant then entered a guilty plea, but later

appealed from his conviction, claiming that the Double

Jeopardy Clause properly barred the second trial. Dis-

6b

cussing the effect of Abney, which was decided during

the pendency of the appeal, the Ninth Circuit held:

A ing Ab to our case, then, it is clear that when

juislieaae “iblaek™ $id appeal teoms the teiel Gout Wend

ele pag Bec cent end ae grunt le cp oll egos id

appeals. As a consequence trial court was without power

to with the trial. Under the unusual circumstances

of this case, the failure to pursue the appeal does not alter

this result. We must, dnnedere, set aside appellant’s con-

viction.

Id. at 3.

I would adopt both the reasoning and a? of

Moroyoqui. Here written notice of appeal was not filed

in the district court and no further steps were taken to

“perfect” the appeal. However, like Moroyoqui, the

court and appellants “agreed that the appeal would be

‘lodged’ but no attempt would be made to pursue it at

that time.” Under the circumstances it would be, at the

least, extremely inequitable to require more of appel-

lants to find a valid appeal.

The majority opinion asserts that the primary pur-

pose underlying the Abney decision is protection from

a second trial. It then argues that since the second trial

has already taken place this policy cannot be achieved,

and that Abney is therefore not applicable. [Such hold-

ing is an open invitation to trial courts to disregard

Abney. Under the majority opinion, trial courts may

ignore a notice of appeal from a pretrial denial of mo-

tion to dismiss on double jeopardy grounds and proceed

instead to trial secure in the knowledge that the court

of appeals will not vacate the conviction for lack of

jurisdiction. This result is precisely what the Supreme

Court intended to eliminate:] when it explained in

Abney that “the rights conferred on a criminal accused

by the Double Jeopardy Clause would be significantly

undermined if appellate review of double jeopardy

claims were postponed until after conviction and sen-

tence.” 431 U.S. at 660.

The focus of concern in Abney is not on the judicial

diseconomy of a second trial but on the protection of

7b

individuals from multiple exposure to the risk of con-

viction and the accompanying public embarrassment,

— strain and expenses. The Supreme Court in-

structed:

To be sure, the Double Jeo Clause protects an individual

i fa Sparro Sage oa gt mega that

against being

lowing nal judgment as the Government suggests How

lowing final ju t, as the Government How-

ever, this Court long i that the ble Jeop-

ardy Clause protects an individual against more than being

subjected to double punishments. It is a guarantee against

pm, cg cartier Pa flees Ae ago EE symm

this focus on the “risk” of conviction, the guarantee against

cenie: ecpraey aatenee am. Snes ividual that, among other

things, ill not be forced, with certain exceptions, to

endure the personal strain, public embarrassment, and ex-

Hapoel oar ed ere at Anprcbic wed -pbie hs aed swsace

t thus protects interests wholly unrelated to the iety of

any subsequent conviction. . . . Obviously, these aspects o the

ashe yoy Fang gence we gael abi Precio

orced to “run the gauntlet” a second time before an appeal

could be taken; even if the accused is acquitted, or, if, con-

victed, has his conviction ultimately reversed on double jeop-

ardy grounds, he has still been forced to endure a trial that

the ble Jeopardy Clause was designed to prohibit. Conse-

uently, if a criminal defendant is to avoid exposure to dou-

ble pag tty Ses thereb enjoy the full protection of the

Clause, his double jeopardy challenge to the indictment must

be reviewable before that subsequent exposure occurs.

531 U.S. 660-62 (emphasis in original).

Unless we vacate the conviction of the trial court, the

fundamental policy of Abney to make a double jeopardy

challenge to an indictment “reviewable before that sub-

a at exposure occurs,” would be utterly frustrated.

ile the majority emphasizes the need to protect

appellants from personal strain, public embarrassment,

and the expense of multiple criminal trials, appellants’

very appeal on this issue illustrates that these interests,

while “wholly unrelated,” are yet secondary to the

actual risk of conviction and punishment. Surely this

court should not determine that appellants would rather

serve their terms of imprisonment under the convic-

tions of a second trial than suffer whatever personal

at

8b

strain, public embarrassment and expense might be

associated with a third trial.

la with the majority that reprosecution of all

appellants is not barred by the Double Jeopardy Clause.

Inasmuch as reprosecution is not inevitable, however,

the proper disposition of this case under the rationale

. and holding of Abney is merely to reverse and set aside

the appellants’ convictions.

Even assuming the district court had jurisdiction to

proceed with the trial prema an. 8 gg waco motion to

dismiss the indictment on double jeopardy grounds,

I would nevertheless reverse on the merits. | cannot

agree with the majority holding that the warrantless

arrests, searches and seizures were based upon probable

cause or justified by exigent circumstances.

Section 878(3) of Title 21 U.S.C. authorizes DEA

agents to make warrantless arrests if there is “probable

cause to believe that the person to be arrested has com-

mitted or is committing a felony.” In determining the

validity of a warrantless “public” arrest, the necessary

consideration is not “the existence of exigent circum-

stances, whether it was practicable to get a warrant,

whether the suspect was about to flee, and the like,”

but “whether there was probable cause for the arrest.”

United States v. Watson, 423 U.S. 411, 417, 423-24

(1976). United States v. Santana, 427 U.S. 38, 42

(1976), held that the threshold of one’s dwelling may

be a “public” place, by defining as “public” any place

where one does not have any reasonable expectation of

privacy. The applicability of the Watson rule dispensing

with the need to show exigent circumstances in order

to have a valid warrantless arrest therefore turns on

whether any of the defendants were in a “public” place

at the time they were arrested.

Watson does not address the issue of a warrantless

search, Thus, a warrantless search which is not con-

ducted incident to a lawful arrest or with the consent

of the accused is generally invalid, absent a showing of

exigent circumstances. In any event, there must be

9b

ee cause, and probable cause has the same mvan-

ng in search cases as it does in arrest cases. Compare

Aguilar v, Texas, 378 U.S. 108 (1964) (search), with

pn gra v. United States, 357 U.S. 480 (1958)

arrest).

The record on appeal clearly indicates that DEA

agents entered upon the private property of appellant

Hanson not to conduct an investigation but to launch

an attack that would produce arrests and uncover drugs

suspected to be on the premises. One team of DEA

agents, with weapons drawn immediately upon leaving

the car, entered a barn or shed in back of the farmhouse,

arrested Rumpf, and saw and smelled marijuana. An-

other team, with weapons similarly drawn, simultane-

ously apprehended appellants Hanson and Masters at

the front door of the farmhouse. The prerequisite prob-

able cause for any of the arrests or for a search of any

part of the farm premises must therefore have existed

prior to the agents’ strategic attacks on the private farm

roperty. Immediately prior to the surprise attack, the

acts and circumstances known to the agents were the

following: (1) Two vehicles were observed turning off

Interstate 40 onto State Road 117 at 4:00 p.m. on April

20, 1976; (2) John Rumpf was known to be the driver

of the Chevrolet van; (3) John Rumpf_ once rented a

storage locker which, sometime subsequent to his aban-

donment thereof, was discovered to contain about an

ounce of marijuana; (4) State Road 117 was believed

to be an area frequented by narcotics smugglers, was

called “Smuggler’s Alley” iy people in the area, and

was the scene of a marijuana-loaded airplane crash

several months before; (5) at 7:00 a.m. on April 21,

1976, the same two vehicles were observed turning onto

Interstate 40 from State Road 117, and proceeding to-

ward Albuquerque; and (6) the camper-trailer towed

behind one vehicle appeared to be “heavily loaded”

since it swayed whenever it changed lanes. Although

probable cause does not contemplate anything ap-

proaching guilt beyond reasonable doubt, it certainly

must be something more than mere suspicion. Spinelli

v. United States, 393 U.S. 410, 414 (1969); Jones v.

10b

United States, 357 U.S. 493, 497 (1958); Nathanson v,

United States, 290 U.S. 41, 46 (1933). Indeed, the facts

and circumstances known to the agents in this case do

not even rise to the level of those in Spinelli, which were

found to be insufficient to constitute probable cause.

The arrests and searches conducted here were based

upon mere suspicion, not facts and circumstances that

would warrant a man of prudence and caution in be-

lieving that the offense had been or was being com-

mitted, Since the core requirement of probable cause

has not been satisfied, it is unnecessary to determine

whether exigent circumstances existed or whether the

barn or farmhouse were “public” property within the

scope of Watson and Santana. The searches and arrests

were invalid and appellants’ motion to suppress the

illegal evidentiary fruit of the unlawful conduct was

improperly denied.

The plain view and plain smell arguments advanced

by the government and accepted by the majority are

mS without merit. The main consideration in applying

either doctrine is to determine whether the observing

officer has a right to be in a position to have that view

or smell. E.g., Harris v. United States, 390 U.S, 234, 236

(1968); United States v, Davis, 423 F.2d 974, 977 (5th

Cir.), cert. denied, 400 U.S. 836 (1970). The court ob-

served in Davis that these doctrines lend themselves to

application in cases involving evidence recovered from

automobiles located in public places ‘ because the ob-

serving officer is not required to trespass on private

property in order to have a clear view [or smell) of

articles inside an automobile.” /d. Or. the other hand,

where officers trespass in order to secure the view or

smell the courts have not hesitated to find the search

unreasonable. We have previously observed that ‘‘[t] he

word ‘houses’ in the Fourth Amendment has been ex-

tended by the courts to include the curtilage,” and that

“Cilf the investigators [physically breach) the curtilage

there would be little doubt that any observations made

therein would [be] proscribed.” Fullbright v. United

States, 392 F.2d 432, 434-35 (10th Cir.), cert. denied,

393 U.S. 830 (1968). It is not asserted that the DEA

11b

agents saw or smelled any marijuana while they were

surveilling the pH rence along the highways, or that

odors or views 0 eee were perceived by any

agent prior to spe y breaching the curtilage in

which the farmhouse and adjacent barn were located.

The smells and views came only after the agents had

trespassed the protected area of the curtilage. The evi-

dence thus discovered was inadmissible. It was not per-

ceived by the eye or nose of an office “who [had] a

right to be in the position to have that view [or smell],”

but was uncovered by an unreasonable search. Harris

v. United States, 390 U.S. at 236.

The Fourth Amendment:

was intended to protect against invasions of “the sanctity of

a man’s home and the privacies of life”... from searches

under indiscriminate, eral authority. Protection of these

interests was assured rohibiting all “unreasonable”

searches and seizures, and by requiring the use of warrants,

which particularly describe “the place to be searched, and

the persons or things to be seized,” thereby interposing a

“magistrate between the citizen and.the police.”

Warden v. Hayden, 387 U.S. 294, 301 (1967) (citations

omitted). The probable cause requirement is the core

requirement both of a reasonable warrantless arrest,

search, or seizure and for obtaining a warrant author-

izing such actions, Yet, it is obvious that Fourth Amend-

ment protections are much more effectively guaranteed

by the use of warrants issued by a neutral magistrate:

The point of the Fourth Amendment, which often is not

gra by zealous officers, is not that it denies law enforce-

ment the support of the usual inferences which reasonable

men draw from evidence. Its protection consists in requiri

that those inferences be drawn by a neutral and detach

magistrate instead of being j by the officer engaged in

the often competitive enterprise of ferreting out crime. Any

assumption that evidence sufficient to support a magistrate’s

disinterested determination to issue a search warrant will

ee Se ee ing a search without a warrant

reduce the Amendment to a nullity and leave the peo-

le’s homes secure only in the discretion of police officers. . . .

en the right of privacy must reasonably yield to the right

of search is, as a rule, to be decided by a judicial officer, not

by a policeman or Government enforcement agent.

ee

12b

Johnson v. United States, 333 U.S. 10, 13-14 (1948)

(footnote omitted). Although the need for aggressive

law enforcement, especially in drug cases, is obvious,

the interests of society are much better served by a

determination of probable cause prior to the arrest or

search. There is a great danger that the ultimate fruits

of an unlawful search or arrest will unduly color the

judgment of judicial officers who examine probable

cause with hindsight. The tendency to evaluate the

lawfulness of a search by the evidence it produces is

especially strong in a case like this where 1500 pounds

of marijuana are staring at the court. More troublesome

than this specific case, however, are the cases we never.

decide in which the unlawful conduct of enforcement

officials has resulted in serious invasions of privacy and

harassment but has failed to produce the evidence neces-

sary for a prosecution. We ought not encourage these

judicially unseen invasions by relaxing the standards

we apply to warrantless searches.

I recognize that many judges, in response to pres-

sures from law enforcement officers, have developed

special rules on probable cause in drug cases. These

rules are justified on the basis of a quasi-national emer-

gency caused by the “use and sale of illegal drugs [in]

alarming proportions.” W. Ringle, Searches and Sei-

zures, Arrests and Confessions § 173 (Supp. 1977). I

nevertheless share the concerns of Judge Richey:

While to some, the exigency of the drug situation may sug-

gest that a loosening of the proscriptions of the Fourth Amend-

ment is in order, this Court [should] not prostitute the pro-

tections of the Bill of Rights in the name of urgency or any

other name. The battle to rid society of illicit drugs must be

won within the framework of our Constitution lest we achieve

a pyrrhic victory. The streets must be rid of the pore but

not at the expense of justice, nor by compromise of individual

liberty.

United States v. Costa, 356 F. Supp. 606. 609 (D.D.C.),

aff'd, 479 F.2d 921 (D.C, Cir, 1973).