# Opposition — Rumpf v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1373%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 893 ## Text ‘ . SEP 19 t97¢ a | M ie CHAM. RODAK, IR, CLERK. | No. 78-93 Gun the Supreme Gourt of the Writed States OctToBER TERM, 1978 JoHN RUMPF, ET AL., PETITIONERS v. Unirep States OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED ‘STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WADE H. McCREE, Jr., Solicitor General, PHILIP B. HEYMANN, Assistant Attorney General, JEROME M. FEIT, PATTY ELLEN MERKAMP, clig Attorneys, Department of Justice, Washington, D.C. 20530. ee CA AP Pe ee eee ree en ee ee ee a 7 RA fae kaa “ye : . : SHER Y SUMAN ore re SURE eae: ; : fhe Boo a ll Seen aoe Sine Dae ae eae, PL aN aoe ae Pea Page ROERAG DOIN a ili a dipneccceurnesbucmiinmesicn oe FORD bite siiniperepidtarainicerepnninrnintasniniome tenn 1 SOUND, WE ONONNC NT ais oc epiabiisteniicimerestccmnarinenetenes 2 NII hiv sips ache liecaienietinseentengtb-agita eeiceesitarentapiian 2 PII aiid ere sitetincnespblnintiiiniaimintintiibattianipnen 6 ERS I ATRL A a el 14 CITATIONS Cases: Abney v. United States, 431 U.S. 651_.___- 6, 10 Arizona v. Washington, 434 U.S. 497_.---- 11 Arthur Anderson & Co., 546 F. 2d 338____- 9 Brown v. United States, 411 U.S. 223____- 12 Carroll v. United States, 267 U.S. 1382____- 13 Chambers v. Maroney, 399 U.S. 42_------- 13 Coolidge v. New Hampshire, 403 U.S. 4438... 13 Gosa v. Mayden, 413 U.S. 665__...-.----- 8 Johnson v. New Jersey, 384 U.S, 719_----- 10 Jones v. United States, 362 U.S. 257_--__- 12 Linkletter v. Walker, 381 U.S. 618_..._._- 10 Moroyoqui v. United States, 570 F. 2d 862. 10 Roberts v. United States, 477 F. 2d 544____ 12 Robinson v. Neil, 409 U.S. 505_..---.----- 6,7 Ruby v. Secretary of United States Navy, BE i i itbcetkint necnennonne 9 United States v. Bailey, 512 F. 2d 833____- 7 United States v. Barket, 530 F. 2d 181, cer- tiorari denied, 429 U.S. 817_.--------~- 7 United States v. Beckerman, 516 F. 2d 905_ 7 (1) Cases—Continued Pose United States v. Cruz, 568 F. 2d 781_.-..~- 9 United States v. Dinitz, 424 U.S. 600.0... 11 United States v. Gentile, 530-F. 24 461, cer- tiorari denied, 426 U.S. 936._--..-...... 12 United States v. Goldstein, 479 F. 2d 1061, certiorari denied, 414 U.S. 873_....-__- 11-12 United States v. Jorn, 400 U.S. 470------. ‘11 United States v. Lansdown, 460 F. 2d 164__ 7 United States v. Peltier, 422 U.S, 531__--_- 7 United States v. Romano, 482 F. 2d 1183, certiorari denied sub nom. Yasser Vv. United States, 414 U.S. 1129___-_______ 11 United States v. Young, 544 F. 2d 415____ 7 Williams v. United States 401 U.S. 646___. 6, 7, 10 Constitution and Statute: Constitution of the United States, Fourth BEES TO 14 21 U.S.C, 841(a)(1)----_--- raat 2 Miscellaneous: 9 Moore, Federal Practice 737- 740 (2d ed. 1975) RS SESE Sepia 9 3h Sane nto he Wed Stat Ocronen Tena, 1978. No. 78-93 . JoHN RuMpr, ET AL., PETITIONERS v. UnitTep STaTES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH OIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App.) is reported at 576 F’. 2d 818. JURISDICTION The opinion of the court of appeals (Pet. App.) was entered on May 4, 1978. A timely petition for rehearing was denied on June 8, 1978. Mr. Justice White extended the time for filing a petition for a writ of certiorari to and including August 7, 1978, and the petition was filed on July 17, 1978. The ju- risdiction of this Court is invoked under 28 U.S.C. 1254(1). a 1. Whether Abney v. United States, 431 -U.8. 651, which was decided: while this case was pending on appeal, requires that petitioners’ convictions be re- versed because they sought to appeal from the court’s order denying their motion to dismiss ‘the indictment on double jeopardy grounds, ~ 3 2. Whether petitioners’ second trial was barred by the Double Jeopardy Clause. 3. Whether marijuana seized near petitioner Hanson’s rented ranch house should have been sup- pressed on the ground that it was seized in violation of the Fourth Amendment. STATEMENT After a jury trial in the United States District Court for the District of New Mexico, petitioners Rumpf, Hanson, and Masters were convicted of possessing more than 1,900 pounds of marijuana with intent to distribute it and of conspiring to commit that offense, in violation of 21 U.S.C. 841(a)(1) and 846. Petitioner Griffin was convicted only on the conspiracy charge (Pet. App. 8a). Masters and Han- son were sentenced to concurrent terms of four years’ imprisonment on each count, to be followed by a spe- cial parole term of four years. Rumpf was sentenced to one year’s imprisonment on the possession count, to be followed by two years’ special parole, and to five years’ probation on the conspiracy count. Griffin was sentenced to four years’ imprisonment on the con- spiracy count, to be followed by a four-year term of —— —_—- 3 special parole. The court of appeals affirmed, one judge dissenting (Pet. App.; Br..3)..5 2 144 1; Early: on the morning of April 20; 1976, Dine Enforcement. Administration agents received a tip from a reliable source that a shipment of marijuana. would: be arriving that evening on State Road 117 near Grants, New Mexico, by air frem Mexico (H,. 27; Tr. 229, .319-320).'. The agents then began sur- - veillance of State Road 117, which is frequently used. as a landing area for aircraft smuggling drugs into this country from Mexico (H. 27, 65; Tr. 323). That afternoon, the agents observed petitioner Rumpf enter State Road 117 in a green Chevrolet; which they recognized as having been involved in prior drug smuggling ventures (H. 28; Tr. 231). Another group of agents saw a blue Ford pick-up truck, pulling a Starcraft collapsible camper trailer, enter the same road. The blue pick-up truck was also known to have been involved in airborne smuggling activities in the past (Tr. 429, 582-533, 562-563). Both vehicles remained on the ‘road all night (H. 29, 82; Tr. 233). At 7:00 the following morning the green Chevrolet pulled out from State Road 117 and turned east on Interstate 40. One group of agents followed it (H. 29-30, 82; Tr. 233-234). Five minutes later, the blue pick-up truck, which was being driven. by petitioner Masters, appeared and proceeded in the same direction, (H. 30; Tr. 349-350, 430). The camper trailer attached to the pick-up truck now appeared to 1 “H.” refers to the hearing on petitioners’ motion to suppress. 2 a? = aa a —- i ae + = Ww e e be heavily 1 pantl, as it was straying badly 6 én the road ( 5 Mahan a tw Weide anivewA ieh houise rented by’ petitioner Harison."When the first pair of agents arrived at the ranch housd shortly thereafter, one of them walked towards & shed some distance from the housé, where Rumpf was standing next to the camper trailer. The camper trailer was still attached to the blue pick-up truck. As he ap- proached, the’ agent saw several large cardboard boxes and plastic garbage bags filled with bricks of’ mari- juana in plain’ view in the open shed. Themarijuana was exposed in some of the packages. The agent also smelled a strong odor of marijuana emanatirig’ from the camper trailer. He placed Rumpf under arrest and searched the camper trailer, finding more than 1,900 pounds of marijuana inside it (H. 66, 69, 74-79, 83-85; Tr. 255-256, 354-374, 416-417, 435). ‘When the second pair of agents arrived at the ranch house, they saw Hanson and Masters hurrying out the front door of the house, apparently preparing to drive off. The agents approached them and placed them under arrest (H. 30-31; Tr. 239, 276-277). Two of the agents were then sent to obtain a search war- rant for the house (H. 32), and the other agents re- mained on the premises until a search warrant was obtained authorizing them to seize the marijuana and search the house (Tr. 449-454, 246-250, 549-550). Meanwhile, at 4:30 P.M., petitioner Griffin arrived at the ranch and asked for Hanson. When told that she was not there, Griffin volunteered that the trailers were his. He was then arrested (H. 32-35, 86-88; Tr. 472). ° 2, Trial began on the mo of July 12, 1976. In Lis opeting Certoadad 10" tha fers, tha vavetiolae ferred to the physical evidence discovered by inveati- gators during their searches of the ranch house and shed. In the course of that discussion, he mentioned | that two ayringes had been found in petitioner Han- . son’s house (‘T'r. 177). After the prosecutor completed his opening statement, all of the attorneys approached the bench and counsel for petitioner Hanson moved for a mistrial, alleging that prior to trial the prose- cutor had assured defense counsel that he would not refer to the syringes (Tr. 183). The prosecutor ex- plained (Tr. 184): Your Honor, I told them I wasn’t going to introduce the syringes at trial, which I’m not going to. I didn’t say that I wouldn’t comment on them. And I didn’t say that the Agents woudn’t testify that they were found at the farm house. ' The court then granted the mistrial motion. Counsel for petitioners Rumpf, Masters, and Griffin, who were present throughout the bench conference, did not ob- ject to the mistrial or otherwise indicate their desire to proceed with the jury that had been selected. The a Se se ee een eee eee afternoon (Tr. 184). When the court reconvened, counsel for’ each of ‘the petitioners moved to dismiss the indictment oh the ground that ‘retrial “was barred’ by’ the ‘Double Jeopardy , Clause. The motion’ was denied, anid counsel for. . betitioner Hanson requested permission to file’ ai oral notice of appeal, which was: granted (Tr. 188): Counsel for the other petitioners -then: “request fed} an interlocutory appeal,” which the court denied (Tr. - 6 191). A jitty Was séletted atid sworn, and 'the second trial commenced ‘withont further SRE by petitioners te. 191-212). 5 ik. tos etre leap be len ane ‘penta ih . appeal’ from the convictions, this Court held.in Abney v. United States, 431 °U.S. 651, 662, that “pretrial orders rejecting claims of former jeopardy * * * éonstitute ‘final decisions’ and thus satisfy. the jurisdictional prerequisites of § 1291.” Accordingly, under Abney petitioners apparently would now be entitled to appeal from the district court’s denial of their motion to dismiss the indictment and to forestall their second trial pending the disposition of that appeal. As the court of appeals held (Pet. App. 4a- 5a), however, Abney does not require that petitioners’ pre-Abney convictions in this case be nullified and that petitioners be retried. First, the court of appeals properly held that the decision. in Abney should not be given retroactive effect. In determining whether a newly announced rule of: criminal procedure should be given retroactive application, this Court has applied. a three-part test, looking to the purpose of the new rule, the extent of the reliance on.the former rule, and the impact of retroactive application on the administration of justice. See Robinson..v, Neil, 409 U8. , 505, 509; Williams. v, United, States,. 401 U.S. 646, 652 n. 5, Under these criteria, the Seen in dbiag should not be anata etconet vt: OO Ne ARM ae, an ais SA7 bdelé ‘oe ? “J oO: 7 ' The first factor requires that a new rule be given retroactive effect only in two. situations; where. the new decision has remedied an. “aspect of the criminal trial that substantially impairs its truth-finding function”’ (United States v. Peltier, 422 U.S. 531, 535; Williams v. United States, supra, 401 U.S. at 653) or where the conduct. at issue has been. held to be “eon- ‘'stitutionally immune from punishment” (Robinson vy. Neil, supra, 409 U.S. at 509). Plainly, neither situation is involved in the interlocutory, ap bility of orders denying motions to dismiss on double jeopardy grounds, The second factor similarly cuts against giving ret- roactive application to Abney. At the time of petition- ers’ trial, the law was unsettled on the question of the appealability of orders denying motions to dismiss on double jeopardy grounds." Since the Tenth Circuit had not yet ruled on the question, the district court was not acting in contravention of controlling case law or even a strong contrary trend when it pro- ceeded with petitioner’s retrial after granting a mis- trial at a very early stage in the first trial. As to the third factor, if Abney were made fully retroactive, the effect on the administration of justice would be adverse. Convictions untainted by error would be set aside even though the double jeopardy claim sought to be appealed had subsequently been * Several circuits permitted an interlocutory appeal (United States v. Barket, 530 F. 2d 181 (C.A. 8), certiorari denied, 429 U.S. 917; United States v. Beckerman, 516 F. 2d 905 (C.A. 2); United States v. Lansdown, 460 F, 24 164 (C.A. 4)), while others refused it (United States v. Young, 544 F. 2d 415 (C.A. 9); United States v, Bailey, 512 F. 2d 883 (C.A. 5)). 8. determined: to. he. without. merit. “Wholesale Anvalida- tion ,of convictions rendered years ago could well mean. that convicted persons would,be freed .without retrial, for witnesses * * * no, longer may be readily available, memories may have faded, records may be incomplete or missing, and physical evidence may have disappeared.’’ Gosa v. Mayden, 413 U.S. 665, 685 (plurality opinion). Moreover, the purpose of permitting an interlocu- tory appeal when double jeopardy claims are raised is to prevent the government from haling a defendant into court when the defendant should be free from the aggravation and expense of a second trial. Yet in a case such as this one, where it has ultimately been de- termined that the second trial was not barred by the Double Jeopardy Clause, petitioners have suffered no prejudice from being denied their interlocutory ap- peal. Since the court of appeals held that their double jeopardy claim is invalid, they are in the same posi- tion now that they would have been in had they pur- sued their interlocutory appeal to judgment in the court of appeals. Double jeopardy interests would hardly be served by requiring another trial of peti- tioners under these circumstances. Finally, we note that petitioners did nothing be- yond filing an oral notice of appeal to protect their rights to an interlocutory appeal.’ They did not seek relief from the court of appeals to prevent the hold- . "Indeed, only petitioner Hanson filed an oral notice of appeal. The other petitioners “request [ed] an interlocu 1” the district court denied (‘Tr, ro ham St be wn . > ing of ‘a second trial, not ‘did they otherwise’ pursue: the imatter with the district court after initially mak- ing their motion ‘for dismissal of the iridictment and obtaining rulings on their requests’ té ‘appeal. Com» pare United States v. Oru, 568 F. 2d 781 (C.A, 2): . Petitioners contend that all that was required of them was to file notice of appeal; at that point; they argue, the district court was deprived of jurisdiction to proceed further with the ease, and any action ‘by: the district court after that time was “a. nullity” (Pet. 6). In fact, however, the mere filing of a notice of appeal does not divest the district court of juris- diction to proceed with the case if the order appealed from does not finally dispose of the entire action, or if the appealability of the order is questionable. See 9 Moore, Federal Practice, pp. 737-740 (2d ed. 1975). Where the district court determines to proceed with the case in the belief that the order in question is. not appealable, the would-be appellant’s proper course to protect its appeal right is to seek mandamus or pro- hibition from the court of appeals. Arthur Anderson & Co. v. Finesilver, 546 F. 2d 338 (C.A. 10); Ruby v. Secretary of United States Navy, 365 F. 2d 385 (C.A. 9). Since petitioners’ took no steps to protect their appeal rights following the mistrial declaration, the court of appeals properly held that the distriet court had jurisdiction to try them before a second jury. ‘The trial took four days, during the course of which peti- tioners did not seek any form of relief from the court of appeals, either through a stay of proceedings in eapennga yeoman way of a writ of mandamus or prohibition. 10 . The decision below appears to conflict with the de- cision of the Ninth Circuit in’ Moroyoqui ¥: United States, 570 F. 2d 862, which petitioners do not cite. The Ninth Circuit in that case held that Abney should be applied to cases pending on direet review when Ab- ney was decided, and therefore reversed a conviction entered upon a guilty plea after a pre-trial denial of a motion to dismiss on double jeopardy grounds. We believe that the court in Moroyoqué mistakenly relied on language in Linkletter v. Walker, 381 U.S. 618, 627, that ‘“‘a change in law will be given effect while a case is on direct review.” The Linkletter rule has been limited to its particular context, and subsequent retroactivity decisions have held that prospective rules are not to be applied to decisions on ditect or collateral review at the time the new rule is adopted. See Johnson v. New Jersey, 384 U.S. 719, 732; Wil- liams v. United States, 401 U.S. 646, 656. Moreover, we do not believe that this conflict requires the atten- tion of this Court, since few if any other cases would be affected by the ruling. The number of cases raising the Abney issue that were on direct appeal when Ab- ney was decided is quite limited, and, in any event, most criminal cases that were on direct appeal in June 1977 have by now become final. 2. On the merits, petitioners contend (Pet. 6-7) that ‘their retrial was barred by the Double Jeopardy Clause. The court of appeals unanimously rejected this claim. As this Court, has held, “‘where circum- stances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier ul to reprosecution, even if the defendant’s motion. is necessitated. by prosecutorial or. judicial error.’ ” United States v. Dinitz, 424 US. 600,..607,. quoting United States v.. Jorn; 400 US. 470, 485, The. “court of appeals correctly found that the prosecutor did not act in bad faith or provoke the mistrial in order'to ‘ob- tain a more favorable forum. Instead, the court held (Pet. App. Ta): The record shows only a misunderstanding between defense counsel and the prosecution as to a conversation before trial as to whether the syringes would be commented on or testified to: Petitioners Rumpf, Masters, and Griffin argue that they did not request or consent to the mistrial and that therefore they can only be retried if there was a ‘‘manifest necessity” to declare a mistrial as to them. Arizona v. Washington, 434 U.S. 497, 505, But These petitioners had the opportunity to explain to the court that they did not wish to join in Hanson’s mistrial motion but instead wished to continue the trial before the jury then impaneled. Rather than doing so, they watched silently while Hanson’s counsel argued the mistrial motion, creating the impression with the court that Hanson’s attorney was speaking for all the de- fendants. Having failed to object to the mistrial, peti- tioners have waived their right to have the mistrial ' judged under the “manifest necessity” standard. United States v. Romano, 482 F, 2d 1183, 1187-1188 (C.A. 5), certiorari denied sub nom. Yassen v. United States, 414 U.S. 1129; United States v. Goldstein, 479 F. 2d 1061, 1067 (C.A. 2), certiorari denied, 414 U.S. A2 ‘873; Roberts vs United States, 477.F. 2d 544.(C.A, 8) ; ef. United: States v. Gentile, $30 F. 2d 461, (C.A, 2), certiorari denied, 426 U.S; 936. _ -.& The: comes ef:appeals sorrectiy: held that there ‘were. both probable cause and exigent circumstances justifying the.. warrantless search of the camper - trailer.’ The DEA agents were informed that there would be a delivery of marijuana by airplane on State Road 117 on the night of June 20, 1976, They saw two vehicles enter State Road 117 on June 20, both of which they recognized as having been involved in pre- vious airborne smuggling schemes, The next morning both vehicles left highway 117, one of them pulling a trailer that appeared to be fully loaded. When the agents arrived at the ranch house, one agent ap- proached the shed where the truck and trailer had been parked. There he saw exposed marijuana in plain view. Approaching the camper, the agent smelled a strong odor of marijuana coming from in- side it. Up to that point, no search had occurred. The DEA agents were simply investigating what they had reasonable cause to believe was a marijuana smug- gling operation in progress. When the agent spotted marijuana in plain view in the shed and smelled the odor of marijuana coming from the camper, he had ample probable cause to search the camper. ° Petitioner Griffin lacks standing to contest the search. He was not present at the time of the search and disclaims a possessory interest in either the premises or the goods, See Jones v, United States, 362 U.S. 257. Furthermore, he was charged only with conspiracy, which is not “* * * an offense that includes, as an essential element of the-offense charged, possession of the seized evidence at the time of the contested search and seizure.” Brown v. United States, 411 U.S. 223, 229. ‘13 Nor was the search of the camper invalid for being conducted without a warrant.’The camper trailer, at- tached to the pick-up truck, had just’ atrived ‘at the farm and was capable of being driven elsewhere in a matter of minutes. Even after Rumpf’s arrest; the | mobility of the camper remained a significant concern, since the agents knew Rumpf-was working with a number of accomplices, any one of whom could re- move the trailer if it were left’ untended. This Court has recognized that the mobility of an automobile jus- tifies an exception to the warrant requirement where the vehicle. is: thought to contain contraband. Cham- bers v. Maroney, 399 U.S. 42, 52; Carroll v. United States, 267 U.S. 132. This case is distinguishable from Coolidge v. New Hampshire, 403 U.S. 443, on which petitioners rely. In Coolidge, unlike the present case, Coolidge’s car was not suspected to contain contraband, it was not an instrumentality of the crime, and there were no suspected confederates who could have moved it (403 U.S. at 462). Moreover, in Coolidge there was “not even the inconvenience of a special police detail to guard the immobilized automobile” (tbid.). In this case, the agents were dealing with a group of accom- plices, the situation had not yet been stabilized at the time of the search, and the agents had probable cause ‘ to believe that the trailer contained contraband. More- over, the agents were in an unfamiliar and remote area in which a search warrant could not readily be obtained. Indeed, once they had stabilized the situa- tion shortly after 9 A.M., the agents sent two of their 14 number to obtain a search warrant for the house; the agents had to wait until approximately 8 or 9 P.M. that evening before the warrant could be obtained (H. 60). The search of the camper-trailer at the time of Rumpf’s arrest thus did not violate the Fourth Amendment rights of any of the petitioners. The petition for a writ of certiorari should be denied. Respectfully submitted. Wane H. McCrez, Jr., Solicitor General. Puiu B. HEYMANN, Assistant ‘Attorney General. JEROME M. Ferr, Patty ELLEN MERKAMP, Attorneys. SEPTEMBER 1978. U.S, GOVERNMENT PRINTING OFFice: 1976 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1373%3A2. Public record. Not legal advice.