# Petition — Rumpf v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1373%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 893 ## Text = ——— » Court, 0. $. JUL 17 tare | remne BOOA, 2FLES 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 F = $= a EB 20° ¢ Sm oe 8 § E ai 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1373%3A1. Public record. Not legal advice.