SUPREME COURT OF THE UNITED STATES

No. 75-1535

1976.SCT.3187, 429 U.S. 5, 97 S. Ct. 26, 50 L. Ed. 2d 5

October 12, 1976

UNITED STATES v. ROSE

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

After the District Court had found respondent guilty at a bench trial, double jeopardy did not bar the Government's appeal from the District Court's order suppressing certain evidence, entered upon reconsideration of respondent's motion to suppress, which was originally denied. United States v. Morrison, ante, p. 1.

Certiorari granted;vacated and remanded.

PER CURIAM.

The operative facts herein are substantially identical to those in United States v. Morrison, ante, p. 1. Respondent's car was stopped by Border Patrol agents; a search disclosed marihuana. Respondent lost a motion to suppress and was found guilty after a bench trial. Following this trial, but before sentencing, the District Court, relying upon our decision in Almeida-Sanchez v. United States, 413 U.S. 266 (1973), granted respondent's motion to suppress.The Court of Appeals for the Tenth Circuit, as it did in Morrison, found the Government's appeal barred by double jeopardy.

In United States v. Wilson, 420 U.S. 332 (1975), we held that double jeopardy would not bar a Government appeal if success on that appeal would result in the reinstatement of a verdict of guilty. The fact that the order of suppression here occurred after a general finding of guilt rendered by the court in a bench trial, rather than after a return of a verdict of guilty by a jury, is immaterial. Morrison, ante, p. 1. Double jeopardy, therefore, does not bar an appeal by the Government.

We grant the motion to proceed in forma pauperis and the petition for certiorari, vacate the judgement of the Court of Appeals, and remand to that court for proceedings consistent herewith.

is so ordered.