United States v. Morrison, 75-1534

• Decision Date: 12 October 1976
• Docket Number: No. 75-1534,75-1534
• Citation: 97 S.Ct. 24,429 U.S. 1,50 L.Ed.2d 1
• Parties: UNITED STATES v. Kenneth Lee MORRISON
• Court: U.S. Supreme Court

429 U.S. 1

97 S.Ct. 24

50 L.Ed.2d 1

UNITED STATES

v Kenneth Lee MORRISON.

No. 75-1534.

Oct. 12, 1976.

PER CURIAM.

On September 27, 1972, a car driven by respondent was stopped by Border Patrol agents at the permanent immigration traffic checkpoint near Truth or Consequences, N. M. An agent detected the odor of marihuana; the car was then searched, disclosing a large quantity of marihuana.

Respondent was charged with possessing marihuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He filed a pretrial motion to suppress the marihuana on the ground that the search of his car violated the Fourth Amendment. He waived his right to a jury trial. The motion to suppress was heard during the trial on the merits, and the District Court denied the motion to suppress and found the respondent guilty as charged.

Approximately three months later, we held that a warrantless roving patrol search of vehicles for aliens, conducted without probable cause at a point removed from the border or its functional equivalent, violated the Fourth Amendment. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). The Court of Appeals for the Tenth Circuit thereafter held that Almeida-Sanchez should be applied retroactively and that its rationale encompasses searches conducted at fixed traffic checkpoints. United States v. King, 485 F.2d 353 (1973); United States v. Maddox, 485 F.2d 361 (1973).

Respondent's original motion to suppress was then reconsidered by the District Court ¹ in the light of King, supra, and Maddox, supra, and the following order was entered:

"(I)t is hereby

"ORDERED that the marihuana which is the subject matter of the charge herein shall be and is hereby suppressed.

"The Court will take appropriate action consistent with this Order if this Order is not appealed by the United States of America or if this Order is affirmed on appeal."

Thereupon the Government appealed pursuant to 18 U.S.C. § 3731.² While this appeal was pending in the Court of Appeals, we held in Bowen v. United States, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641 (1975); United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), that Almeida-Sanchez was not to be applied retroactively to Border Patrol searches conducted prior to June 21, 1973. After the Government moved for summary reversal of the District Court's suppression order, the Court of Appeals, without benefit of briefing or oral argument, dismissed the Government's appeal for lack of jurisdiction, finding that double jeopardy would bar a retrial. The court, citing United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), felt that double jeopardy would bar because further proceedings involving "the resolution of factual issues going to the elements of the offense charged . . ." would be required.

We cannot agree. In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), we held:

"(W)hen a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause." Id., at 352-353, 95 S.Ct., at 1026.

The holding in Wilson applies to the bench trial here, for, as we stated in United States v. Jenkins, supra :

"Since the Double Jeopardy Clause of the Fifth Amendment nowhere distinguishes between bench and jury trials, the principles given expression through...