UNITED STATES OF AMERICA, PETITIONER V. VICTOR DOMINGO GARCIA, ET
AL.

   No. 82-1549

   In the Supreme Court of the United States

   October Term, 1982

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the decision of the United States
Court of Appeals for the Fifth Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit

                       PARTIES TO THE PROCEEDING

   In addition to the parties shown by the caption of this case, Ruben
Barrera-Saenz and Adan Montolla Mungia were appellants below and are
respondents here.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-17a) is
reported at 676 F.2d 1086.  The ruling of the district court denying
respondents' motion to suppress evidence (App. D, infra, 20a-22a) is
unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on May 28, 1982
(App. B, infra, 18a).  A petition for rehearing was denied on December
20, 1982 (App. C, infra, 19a).  On February 9, 1983, Justice Rehnquist
extended the time within which to file a petition for a writ of
certiorari to and including March 20, 1983.  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the Fourth Amendment exclusionary rule may be invoked in
a federal criminal prosecution to suppress the evidentiary fruits of
investigative stops and ensuing searches that met the constitutional
standards of reasonable suspicion and probable cause but were
technically illegal under state law because the arresting officers --
state game wardens -- lacked statutory authority to make arrests for
non-game law violations occurring outside of state parks.

   2. Whether, assuming it is sometimes appropriate to apply the
exclusionary rule on the basis of the illegality of a stop under state
law, the evidentiary fruits of the stops in this case nevertheless
should be admissible because the arresting officers reasonably
believed that they were acting within the scope of their authority.

   3. Whether the application of a "reasonable mistake" exception to
the exclusionary rule in a federal criminal proceeding is in any way
dependent on state rules of evidence or is instead solely a matter of
federal law.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Southern District of Texas, respondent Mungia was convicted of
possessing marijuana with intent to distribute it, in violation of 21
U.S.C. 841(a)(1), and respondents Garcia and Barrera-Saenz were
convicted of conspiring to commit that offense, in violation of 21
U.S.C. 846.  /1/ The evidence at trial showed that respondent Mungia
transported some 2,073 pounds of marijuana and that respondents Garcia
and Barrera-Saenz participated in a conspiracy to further the
distribution of the marijuana.  The scheme was thwarted when two Texas
game wardens discovered respondents' activities.  Respondent Garcia
was sentenced to eight years' imprisonment.  Respondent Mungia was
sentenced to five years' imprisonment, to be followed by a three-year
special parole term.  Respondent Barrera-Saenz was sentenced to five
years' imprisonment, all but six months of which were suspended in
favor of probation.  The court of appeals reversed the convictions
(App. A, infra, 1a-17a).

   1. The evidence showed that on the evening of October 17, 1980,
Texas game wardens Christopher Huff and Hilario Saenz established an
observation post on a hill approximately 12.8 miles north of Rio
Grande City, Texas, and some 100 yards west of Highway 3167 (Tr. 61,
199).  /2/ The wardens frequently used this observation post to patrol
for game violations (Tr. 61-62).

   At approximately 10:15 p.m., the officers heard a loud, banging
noise and the sound of an engine in the area south of their their
lookout point.  (Tr. 62, 205, 403).  Looking through his binoculars,
Officer Huff saw a large, white vehicle driving through a pasture (Tr.
63).  The vehicle was driving without any lights (Tr. 63, 65, 207).
Huff gave his binoculars to Officer Saenz, who also observed a large
truck without lights moving through a pasture (Tr. 403-404).  When the
truck reached Highway 3167, its headlights were turned on.  It then
headed north on Highway 3167 (Tr. 64, 208, 405).

   Officer Huff thought it was unusual to see a large truck driving
without lights in a pasture (Tr. 72), particularly because he knew
from personal knowledge that the dirt road on which the truck was
travelling was hazardous (Tr. 140).  /3/ In addition, Officer Huff's
suspicions were aroused because he recently had participated in the
recovery of a stolen tractor-trailer in the same general area (Tr.
105, 143).  Finally, only two days before the events in question, a
Customs Patrol Officer had asked Officer Huff to be on the lookout for
large trucks because of their use in the transportation of illicit
drugs (Tr. 106, 142-143).

   With this background knowledge, Officer Huff suggested to his
fellow officer that the truck might be stolen or that it might contain
a load of marijuana (Tr. 72, 208).  Accordingly, the two officers
pursued the truck;  they eventually stopped it about one-half mile
north of their observation post (Tr. 73, 209).  The vehicle was an
18-wheel diesel truck with a tanker-trailer of the type usually used
for carrying oil or gasoline (Tr. 74-75, 210).  Huff knew that there
were no oil wells on the property from which the tanker had emerged
(Tr. 152-153).  The officers approached the cab of the tanker, and
respondent Mungia, the sole occupant, stepped out.  Officer Huff
identified himself and asked Mungia for identification.  Mungia
produced a driver's license and, in response to a question from Huff,
said that he had come from a ranch "down below there" and was looking
for the Las Escobas Ranch (Tr. 75-77, 210-212, 407).  Mungia became
very nervous;  his hands were trembling (Tr. 78, 212).  When Huff
asked Mungia what company employed him and who owned the tanker,
Mungia said only that the tanker belonged to "some gringo" for whom
Mungia worked but whom he could not identify (Tr. 78, 154, 212-213,
408-409).  Huff then said he was going to search the tanker;  Mungia
told him to "go ahead" (Tr. 78, 154-155, 213).

   Huff climbed onto the trailer.  He found marijuana residue around
the opening of the tank, and when he opened the lid, he encountered a
strong smell of marijuana.  He then shined his flashlight into the
interior of the tanker, where he saw many sacks of a substance that
appeared to be marijuana (Tr. 79-80, 213-216).  After climbing down
from the trailer, Huff advised Mungia that he was under arrest for
possession of marijuana (Tr. 80, 216).  Leaving Officer Saenz to watch
the tanker, Huff handcuffed Mungia, placed him in the patrol car and
drove back to the point where the tanker had entered Highway 3167 from
the dirt road.  Huff parked his patrol car there on the shoulder, with
all lights off (Tr. 81-82, 216-217, 220-223).

   Within approximately five minutes, a beige Chevrolet pickup truck
came down the same dirt road, again without lights.  Huff first saw it
when it was about 20 yards away from his patrol car.  When the pickup
reached his position, Huff turned on his headlights and red lights;
the pickup stopped (Tr. 85-87, 223-225).  Huff left his patrol car and
approached the pickup.  Three men were in the cab;  Huff recognized
the driver as respondent Garcia.  As he approached, Huff saw the men
on the passenger side -- co-defendant Garza-Soliz -- reach down toward
the floor.  Huff was unsure whether Garza-Soliz was trying to conceal
something or was reaching for a weapon (Tr. 87-89, 93, 227-230).
Accordingly, Huff directed the three men to leave the pickup and place
their hands on the driver's side of the truck.  Garcia, Garza-Soliz,
and respondent Barrera-Saenz -- the third man -- complied with Huff's
request.  Huff then patted them down for weapons.  In Garcia's back
pocket, Huff felt a metallic object that turned out to be a loaded
ammunition clip for a .45 caliber pistol.  Garcia advised Huff that he
had a pistol in the cab of the pickup (Tr. 89-92, 229, 231-233).  Huff
used his one remaining set of handcuffs to handcuff Garcia and
Barrera-Saenz together.  Garza-Soliz, from whose boot Huff removoved a
bag of marijuana, stood alongside the other two (Tr. 93-95, 233-234,
240).

   Officer Huff then went around the pickup to the passenger side to
search for Garcia's weapon.  As he did so, Huff noticed the odor of
marijuana and saw marijuana residue in the bed of the pickup (Tr. 95,
237).  He also found a Colt .45 caliber pistol under the seat on the
floor of the passenger side (Tr. 96, 236-237).  Huff then returned to
his patrol car to radio the Starr County Sheriff's Department for
assistance.  As he did so, co-defendant Garza-Soliz fled into the
brush (Tr. 97, 240, 245).

   Approximately 15 minutes later, two sheriff's deputies arrived.
Huff left respondents with one deputy;  Huff and the other deputy
followed the tracks of the 18-wheel tanker on the road into the
pasture (Tr. 98, 247-250).  Deep in the pasture, in the middle of the
road, they found a white 1980 GMC pickup with a flat tire;  the
officers later determined that the pickup was registered to respondent
Garcia's brother.  Marijuana residue and footprints were visible
around the pickup, and the tracks of the 18-wheeler ended near the
pickup's location (Tr. 100-102, 250-253, 256, 258-259).  The tanker's
tracks formed a sort of "Y" around the pickup, as if the tanker had
turned around at that location (Tr. 252-253, 264, 469-471, 473,
579-581).

   In the meantime, several Customs Patrol officers arrived at the
scene.  After Huff briefed them, they too went into the pasture to
examine the tanker tracks and the pickup (Tr. 265-266, 268, 273-275,
626-627).  Their examination of the white pickup revealed marijuana
residue on the truck bed, bumper, and left rear tire (Tr. 428-429,
628-629, 673).  Samples of the residue from both pickup trucks were
taken the next morning (Tr. 750-752).  The tanker truck yielded 2,073
pounds of marijuana (Tr. 749).  /4/

   2. Prior to trial, respondents unsuccessfully moved to suppress the
evidence of marijuana on the ground that, under Texas law, game
wardens lack authority to make arrests for non-game violations, that
the arrests were therefore illegal, and that the marijuana should be
suppressed as the evidentiary fruits of the illegal arrests.
Respondents also argued that the game wardens lacked reasonable
suspicion to stop the tanker or probable cause to search the tanker
and to arrest respondents Garcia and Barrera-Saenz.

   At the pretrial hearing on the suppression motion and at trial,
Officer Huff consistently testified that he was a certified peace
officer (Tr. 60, 132-133, 150-151, 197).  The government also called
as a witness the regional director of law enforcement of the Texas
Department of Parks and Wildlife;  he would have testified to his
belief that game wardens have the powers of peace officers under Texas
law.  But before that witness could so testify, the district court
held that Huff had authority under applicable Texas statutes to arrest
respondents (Tr. 157-158).  The district court further held that the
stop of the tanker was justified by reasonable suspicion and that the
game wardens had probable cause to search the tanker and to arrest
respondents (App. D, infra, 20a-22a).

   3. The court of appeals reversed, holding that the marijuana should
have been suppressed (App. A, infra, 16a-17a).  The court began its
analysis with the proposition that the legality of respondent's
arrests by state officers is governed by state law (id. at 4a-5a).  It
then determined that the arrests were illegal because, under Texas
law, game wardens lack "cosmic arresting authority" (id. at 14a).
Although article 2.12(11) of the Texas Criminal Procedure Code
Annotated (Vernon 1977) includes game wardens within its definition of
peace officers, and article 2.13 authorizes a peace officer to make
warrantless arrests "where * * * authorized by law," the court
concluded that the Texas Parks and Wildlife Code limits a game
warden's arrest powers either to offenses committed in state parks or
to violations of game laws (App. A, infra, 7a-8a, 13a).  The court
rejected the government's argument that article 14.03 of the Texas
Criminal Procedure Code Annotated, which grants any peace officer the
power to make warrantless arrests on probable cause, applies to game
wardens despite the limitations of the Parks and Wildlife Code (App.
A, infra, 12a-13a).  Because the arrests in this case neither took
place in a state park nor were for violations of a game law, the court
held that the arrests were invalid and that the marijuana evidence
should have been suppressed as the fruit of the arrests (id. at
14a-16a).  Finally, the court ruled that the "good-faith" exception to
the exclusionary rule (see United States v. Williams, 622 F.2d 830,
840-847 (5th Cir. 1980) (en banc), cert. denied, 449 U.S. 1127 (1981))
was not applicable in this federal prosecution because the Texas
courts do not recognize such an exception (App. A, infra, 16a-17a).
Accordingly, the court reversed the convictions (id. at 17a).  /5/

   4. The government petitioned for rehearing.  First, the government
pointed out that after the court of appeals' decision in this case, a
panel of the Texas Court of Criminal Appeals expressly held that game
wardens possess the general arrest powers accorded to any peace
officer under articles 2.13 and 14.03 of the Texas Criminal Procedure
Code Annotated.  Christopher v. State, 639 S.W.2d 932 (Tex. Crim. App.
1982).  /6/ Accordingly, the government argued that it would be
appropriate for the court of appeals to reconsider its opinion and to
defer to the Christopher court's determination on this issue of state
law.  Further, the government argued that any technical illegality in
the game wardens' actions under state law should not preclude
admission of the marijuana evidence in this federal prosecution
because there was no indication that the game wardens' actions
violated federal constitutional standards and because the game wardens
acted in the reasonable belief that they possessed general arrest
authority under Texas law.  Relying principally on Elkins v. United
States, 364 U.S. 206 (1960), the government contended that the court
of appeals erred in applying state rather than federal law to
determine whether to to invoke the exclusionary rule.

   The court of appeals announced that it would defer any ruling on
the government's rehearing petition after learning that the Texas
Court of Criminal Appeals had granted a petition for rehearing en banc
in Christopher v. State, supra.  On rehearing, the state court again
affirmed Christopher's conviction for possession of marijuana (see
page 8 note 6, supra), but it modified its ruling on the scope of game
wardens' general arrest powers.  Relying on Tex. Rev. Civ. Stat. Ann.
art. 6701d Section 153 (Vernon 1977), the court held that game wardens
are authorized to make warrantless arrests for violations of state
traffic laws (whether or not the traffic violations occur in state
parks or in connection with game law violations), but it rejected the
panel's conclusion that game wardens possess the full arrest powers of
any Texas peace officer (639 S.W.2d at 937).

   Thereafter, the court of appeals denied the government's rehearing
petition in this case (App. C, infra, 19a), citing the en banc
decision in Christopher.  The court did not address the government's
alternative grounds for rehearing.  /7/

                   REASONS FOR GRANTING THE PETITION

   The court of appeals has extended the reach of the Fourth Amendment
exclusionary rule far beyond its intended scope.  The court did not
rule, nor could it have ruled on this record, that the game wardens
violated the Fourth Amendment or any federal statute or rule.  And the
state law that was violated was not one intended to safeguard the
Fourth Amendment or related privacy interests.  Instead, the state law
was a purely technical one designed to allocate arrest powers among
various state officials;  it was not intended to protect the rights of
suspiciously-behaving citizens.  This Court has never held that the
exclusionary rule is applicable to violations of such idiosyncratic
state laws.

   The court of appeals also erred in failing to apply its own
good-faith exception to the exclusionary rule in this case.  Clearly,
the arresting officers, even if mistaken, did not act unreasonably in
thinking that they possessed the full arrest powers of any Texas peace
officer;  the district court and a panel of the Texas Court of
Criminal Appeals so held.  The game wardens could not reasonably have
been expected to anticipate the contrary result ultimately reached by
a panel of the Fifth Circuit;  and clearly they could not have
predicted the result reached by the state court sitting en banc, which
grants them full arrest powers for drug offenses discovered in the
course of traffic violations but not otherwise.

   Finally, the court seriously erred in looking to state evidentiary
rules to determine the applicability of the exclusionary rule.  The
admissibility of evidence in federal criminal proceedings is governed
by federal law, including the Federal Rules of Evidence, not by state
law.

   The result of the court's decision is an unjustified extension of
the exclusionary rule that is compounded by confusion as to the
applicable rules of evidence.  In light of the importance to our
system of criminal justice of the proper application of the
exclusionary rule, this Court's review is warranted.

   1. The court of appeals did not hold, or even suggest, that the
stop of the tanker driven by respondent Mungia, although perhaps
illegal under state law, in any way violated the Fourth Amendment or
any federal law.  /8/ Instead, the court summarily concluded (App. A,
infra, 16a), without citation of authority, as follows:

         Having found that defendants were illegally arrested, it
      follows that the evidentiary fruits of those unlawful arrests
      should not have been introduced at defendants' trial.

   Contrary to the court of appeals' unsupported assertion that
suppression was required in these circumstances, we submit that the
court was required first to consider the nature of the state
illegality.  If, as here, the violation of state law was not of
constitutional magnitude, then neither the Fourth Amendment nor any
federal statute confers authority on the federal courts to suppress
evidence obtained in violation of a purely technical state law.  /9/

   a. Since Weeks v. United States, 232 U.S. 383 (1914), it has been
clear that the exclusionary rule is a judicial response to "direct
violation of the constitutional rights of the defendant" (id. at 398;
emphasis added).  See, e.g., Stone v. Powell, 428 U.S. 465,
482(1976)(emphasis added)("(t)he exclusionary rule was a judicially
created means of effectuating the rights secured by the Fourth
Amendment");  United States v. Calandra, 414 U.S. 338, 348 (1974)
(emphasis added) ("the rule is a judicially created remedy designed to
safeguard Fourth Amendment rights * * *");  Elkins v. United States,
364 U.S. 206, 217 (1960) (emphasis added) (the purpose of the rule is
"to compel respect for the constitutional guaranty * * *").  See also
United States v. Caceres, 440 U.S. 741 (1979) (refusing to exclude
evidence obtained as a result of electronic recording in violation of
government regulations but not in violation of defendant's
constitutional rights);  United States v. Hensel, No. 81-1538 (1st
Cir. Jan. 25, 1983), slip op. 27 ("The exclusionary rule was not
fashioned to vindicate a broad, general right to be free of agency
action not 'authorized' by law, but rather to protect certain
specific, constitutionally protected rights of individuals").  /10/

   Indeed, despite the exclusionary rule's broad purpose of deterring
constitutional violations, this Court has recognized that application
of the rule "deflects the truthfinding process and often frees the
guilty." Stone v. Powell, supra, 428 U.S. at 490.  Accordingly, the
Court has substituted for automatic exclusion of evidence seized in
violation of Fourth Amendment rights a balancing test in which
deterrence of official misconduct is weighed against the substantial
cost to society of excluding probative evidence.  See, e.g., United
States v. Janis, 428 U.S. 433 (1976);  United States v. Calandra,
supra, 414 U.S. at 349-352;  Alderman v. United States, 394 U.S. 165,
175 (1969).  These cases hold that invocation of the exclusionary rule
may be inappropriate even when actual violations of the Fourth
Amendment have occurred;  it follows a fortiori that imposition of
that drastic remedy is wholly disproportionate to the purpose for
which it was apparently used here, viz., the enforcement of a state's
statutory provisions circumscribing the arrest powers of game wardens.
 Accordingly, Officer Huff's stop of respondents did not call for
invocation of the exclusionary rule because, as the district court
held (App. D, infra, 20a-22a), the officer's actions were fully
consistent with Fourth Amendment requirements and did not otherwise
violate the Constitution.

   b. Under the Fourth Amendment, an investigative stop, such as the
stop of the tanker truck in this case, need be grounded only on
reasonable suspicion.  See United States v. Brignoni-Ponce, 422 U.S.
873, 884 (1975).  In the present case, the game wardens had a
reasonable suspicion that criminal activity was afoot based on
respondent Mungia's highly unusual activity of driving a large tanker
at night without lights on a very poor ranch road near the border,
coupled with Officer Huff's own knowledge of previous criminal
activity involving a stolen tanker in the same general area and
another officer's directive to watch for large trucks of the type
driven by Mungia because of their use in marijuana smuggling in the
area (Tr. 72, 105-106, 138-143).  This information then ripened into
probable cause to believe that the tanker contained contraband,
justifying the search of the tanker, when respondent Mungia was unable
to answer or gave evasive answers to certain very elementary questions
concerning the place of origin of his trip, the identity of his
employer, and the owner of the tanker (Tr. 75-78, 154;  see also Tr.
212-213, 408-409).  The discovery of marijuana in the tanker clearly
justified Mungia's arrest, as well as the stop and arrest of
respondents Gargia and Barrera-Saenz when, moments later, they were
observed in an unlighted pickup truck leaving the same pasture from
which Mungia had emerged (Tr. 85-87;  see also Tr. 223-225).  The fact
that the game wardens lacked authority under Texas law to take these
actions did not implicate respondents' Fourth Amendment rights because
the Fourth Amendment simply does not address the question of which
government officers may make a search or seize in a particular
situation;  instead, the Fourth Amendment requires only that the
governmental intrusion be supported by reasonable suspicion or
probable cause depending on its nature.  /11/

   c. This distinction, for exclusionary rule purposes, between
constitutional and nonconstitutional error has been widely recognized
by the federal courts of appeals in the context of cases arising out
of violations of Fed. R. Crim. P. 41, governing the issuance and
execution of search warrants.  These cases hold that, as a general
principle, a violation of the requirements of Rule 41 does not warrant
suppression of evidence unless the violation renders the search
unconstitutional under traditional Fourth Amendment standards.  See,
e.g., United States v. Harrington, 681 F.2d 612, 615 (9th Cir. 1982);
United States v. Vasser, 648 F.2d 507, 510 (9th Cir. 1980), cert.
denied, 450 U.S. 928 (1981);  United States v. Pennington, 635 F.2d
1387, 1390 (10th Cir. 1980), cert. denied, 451 U.S. 938 (1981);
United States v. Gitcho, 601 F.2d 369, 372 (8th Cir. 1979);  United
States v. Dudek, 530 F.2d 684, 689 (6th Cir. 1976);  United States v.
Burke, 517 F.2d 377, 386 (2d Cir. 1975).  /12/ As the court stated in
United States v. Burke, supra, 517 F.2d at 386, quoting United States
v. Dunnings, 425 F.2d 836, 840 (2d Cir. 1969), cert. denied, 397 U.S.
1002 (1970), the exclusionary rule is "'a blunt instrument, conferring
an altogether disproportionate reward not so much in the interest of
the defendant as in that of society at large.' For that reason courts
should be wary in extending the exclusionary rule * * * to violations
which are not of constitutional magnitude." /13/

   d. The court of appeals felt bound to follow this Court's decision
in United States v. Di Re, 332 U.S. 581, 589 (1948), in which the
Court held that in the absence of a controlling federal statute, the
validity of a warrantless arrest is to be determined according to the
law of the state in which the arrest took place.  See also United
States v. Watson, 423 U.S. 411, 420 n.8 (1976);  Ker v. California,
374 U.S. 23, 37 (1963);  Miller v. United States, 357 U.S. 301 (1958);
 Johnson v. United States, 333 U.S. 10, 15 n.5 (1948).  Apart from the
question of Di Re's continuing validity, /14/ we note that the state
statute in that case was significantly different from the one involved
here.  The requirement that warrantless misdemeanor arrests be made
only for offenses committed in the presence of the arresting officer
(332 U.S. at 591), while not constitutionally mandated, clearly
implicates substantial individual liberty interests;  the Texas
statutory provisions circumscribing the arrest powers of game wardens
do not.  /15/

   In our view, it is clearly inappropriate for a federal court to
order suppression to enforce a state statutory provision that does not
implicate constitutional rights or protect substantial individual
privacy or liberty interests.  There is no compelling federal interest
in enforcement of the Texas provisions governing the arrest powers of
game wardens sufficient to justify suppression of the highly probative
evidence seized here and the consequent reversal of respondents'
criminal convictions.  It is true that in rejecting the "silver
platter" doctrine in Elkins this Court relied in part on the
frustration of state policy that would result if federal courts
admitted evidence that would not have been admissible in a state court
(364 U.S. at 221-222).  But the Court in Elkins clearly had in mind
state search and seizure rules of constitutional magnitude that were
congruent with federal standards (ibid.), and neither the policy nor
the logic of that decision extends to cases involving technical,
nonconstitutional state requirements that have no counterpart in
federal law.  Here, by their observable conduct, respondents rendered
themselves subject to stop, and eventually arrest, by any duly
authorized state or federal official.  It was wholly fortuitous, and
wholly immaterial in terms of their expectations of freedom from
official intrusion, that the particular officers who observed them
lacked full police powers.  The only law that was violated by the
officers was one intended to allocate governmental powers among
various officials, rather than one intended to protect the rights of
citizens engaging in suspicious behavior.  Accordingly, the court's
invocation of the exclusionary rule was erroneous.

   2. Even assuming that the exclusionary rule may sometimes be
invoked for violation of a state law that does not embody
constitutional requirements, the rule should not have been applied in
this case.  At the time of the events in question, the Texas courts
had not settled the scope of a game warden's arrest powers.  At the
suppression hearing, Officer Huff consistently testified that he was a
certified peace officer (Tr. 60, 132-133, 150-151, 197), who, under
article 14.03 of the Texas Criminal Procedure Code Annotated, would be
authorized to make warrantless arrests on probable cause.  Moreover,
the government offered as a witness the regional director of law
enforcement of the Texas Department of Parks and Wildlife;  this
witness would have testified that game wardens have the full powers of
peace officers under Texas law.  But the district court ruled that
this witness's testimony was unnecessary because the court's own
examination of the relevant Texas statutes had convinced it that game
wardens had general arrest powers (Tr. 157-159).  And, as previously
noted, a panel of the Texas Court of Criminal Appeals subsequently
reached the same conclusion.  Christopher v. State, supra, 639 S.W.2d
at 934-935.

   That a panel of the Fifth Circuit and the Texas Court of Criminal
Appeals sitting en banc later reached a different conclusion in no way
detracts from the fact that at all relevant times Officer Huff (as
well as his superior or the Texas Department of Parks and Wildlife)
reasonably believed that he had all the powers of a Texas peace
officer.  Accordingly, the "good-faith" or "reasonable mistake"
exception to the exclusionary rule adopted by the Fifth Circuit in
United States v. Williams, 622 F.2d 830, 840-847 (1980) (en banc),
cert. denied, 449 U.S. 1127 (1981), should have been applied here.

   The similarity between this case and Williams is striking.  In
Williams, a federal agent who had previously arrested Williams in Ohio
for a narcotics violation encountered her in another state.  The agent
knew that a condition of Williams' release on bond pending appeal was
that she remain in Ohio.  Accordingly, the agent arrested Williams for
violation this condition and, in ensuing searches incident to the
arrest, seized heroin from Williams' possession.

   Sitting en banc, the Fifth Circuit held unanimously that the
district court should not have suppressed the heroin.  One majority of
the court held that the federal agent had legal authority to arrest
Williams because, by violating a condition of her bail release, she
had committed the crime of contempt of court in the agent's presence
(622 F.2d at 836-839).  A different, overlapping majority of the court
held that, irrespective of the validity of Williams' arrest, the
heroin should not have been suppressed because the agent had acted in
good faith in arresting and searching Williams and could not
reasonably be expected to have known that there was any serious doubt
concerning his authority to make the arrest.  Because the purpose of
the exclusionary rule is to deter "willful or flagrant actions by
police, not reasonable, good-faith ones" (622 F.2d at 840), the court
concluded that it made no sense to suppress evidence in these
circumstances.  Here, too, there can be no doubt that Officer Huff
acted reasonably, as evidenced by the fact that the district court and
a panel of the Texas Court of Criminal Appeals upheld the general
arrest powers of game wardens.  Under these circumstances, application
of the exclusionary rule is wholly unjustified.

   This issue is similar to that presently under advisement following
the reargument in Illinois v. Gates, No. 81-430 (reargued Mar. 1,
1983).  If the Court reaches and decides the exclusionary rule issue
in Gates, however, its decision will not necessarily control the
disposition of this case, because Gates involves the special situation
presented by a search conducted pursuant to a warrant.  It thus seems
entirely possible that this case will afford a suitable vehicle to
consider important issues that may remain unsettled after Gates.  /16/

   3. Finally, the court of appeals seriously erred in looking to
state law to determine the applicability of the exclusionary rule.
Even accepting the propriety of analyzing the legality of the arrests
under state law (see pages 17-18 note 14, supra), the court of appeals
cited no authority, and we know of none, for the proposition that
state rules of evidence govern federal criminal prosecutions.  On the
contrary, federal courts are bound to apply the Federal Rules of
Evidence in proceedings before them.  See Fed. R. Evid. 1101.  Thus,
Rule 402 of the Federal Rules of Evidence, rather than the evidentiary
rules of the State of Texas, governs this proceeding.  /17/ Rule 402
provides for the admission of all relevant evidence, "except as
otherwise provided by the Constitution of the United States, by Act of
Congress, by these rules, or by other rules prescribed by the Supreme
Court pursuant to statutory authority." None of the exceptions is
applicable here;  neither the federal Constitution nor any federal
statute or rule calls for the exclusion of evidence obtained in
violation of a purely technical state law.

   Contrary to the court of appeals' assertion (App. A, infra, 17a),
application of a "reasonable mistake" exception to the exclusionary
rule in this case would not have the effect of "engraft(ing) a 'good
faith' exception onto Texas jurisprudence." The courts of Texas remain
free to admit or exclude evidence in their own proceedings as they see
fit, but the rules of procedure utilized in federal criminal trials
should in no way depend on the idiosyncracies of state law.  This is
clear from the Senate Report accompanying the adoption of the Federal
Rules of Evidence.  The report (S. Rep. No. 93-1277, 93d Cong., 2d
Sess. 8 (1974)) observed:

      (T)here is a real need for a comprehensive code of evidence
      intended to govern the admissibility of proof in all trials
      before the Federal courts because of the lack of uniformity and
      clarity in the present law of evidence on the Federal level.

   The unprecedented approach taken by the court of appeals in this
case is thus flatly inconsistent with Congress' purpose in enacting
the Federal Rules of Evidence.  /18/

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   D. LOWELL JENSEN

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   KATHRYN A. OBERLY

      Assistant to the Solicitor General

   JOEL M. GERSHOWITZ

      Attorney

   MARCH 1983

   /1/ Respondents Garcia and Barrera-Saenz were acquitted on the
substantive offense, while respondent Mungia was acquitted on the
conspiracy count.  A fourth co-defendant, Jose Angel Garza-Soliz, fled
the scene of the arrest and has not been apprehended.

   /2/ "Tr." refers to the consecutively-paginated transcript of the
suppression hearing and trial contained in Volumes II-VIII of the
record on appeal.

   /3/ Indeed, later during the night of the events in question,
Officer Huff had to help pull a Customs Patrol Officer's vehicle out
of a ditch on the same road (Tr. 140).

   /4/ A chemist from the Drug Enforcement Administration testified
that after this amount was cleaned of seeds and stems, it still would
yield 1.8 million cigarettes at two cigarettes per gram (Tr. 802-803).

   /5/ Because it rested its judgment on the conclusion that the
arrests exceeded the officers' authority under state law, the court of
appeals did not review the district court's determination (App. D,
infra, 20a-22a) that the arrests were supported by probable cause
(App. A, infra, 17a n.27).  The court also declined to review the
challenge to the sufficiency of the evidence mounted by respondents
Garcia and Barrera-Saenz (ibid.).

   /6/ In Christopher, the defendant was stopped by a game warden who
had observed him driving in excess of the speed limit.  As the warden
approached the vehicle, he smelled marijuana.  Marijuana was later
found in defendant's vehicle, and he was convicted of possession of
that drug (639 S.W.2d at 933-934).

   /7/ On January 11, 1983, the government moved for dismissal of the
indictment against respondents, and that motion was granted by the
district court on January 12, 1983.  For the reasons set forth in our
supplemental brief in United States v. Villamonte-Marquez, No. 81-1350
(filed Mar. 15, 1983), we do not believe this action affects this
Court's jurisdiction.  We are furnishing respondents' counsel a copy
of our supplemental brief in Villamonte-Marquez.

   /8/ One of the many anomalies in the court of appeals' decision is
its strict focus on the legality of the arrests in this case when, in
fact, the arrests were completely irrelevant to the seizure of the
marijuana evidence.  As we have set forth above (see pages 3-4,
supra), Officer Huff searched the tanker driven by respondent Mungia
before making the arrest;  in the case of the other respondents, no
search was required because marijuana residue was in plain view in the
bed of their pickup truck.  For purposes of this case, however, we may
assume that if Officer Huff lacked authority under state law to make
arrests outside of state parks for non-game law violations, he
likewise lacked authority under state law to stop vehicles outside of
state parks on suspicion of such violations.  Accordingly, we presume
that the court of appeals would have reached the same result had it
focused on the stop of the tanker truck, which was the critical event
in this case.

   Nevertheless, it is important to point out that this Court has
never ruled on the question whether state or federal law governs the
validity of investigative stops.  Although the Court has held that
searches are tested by federal law (Elkins v. United States, 364 U.S.
206, 217 (1960)), and that warrantless arrests are tested by state law
in the absence of a controlling federal statute (United States v. Di
Re, 332 U.S. 581, 589 (1948)), an investigative stop does not clearly
fall within either category.  An investigative stop may lead to a
search (and hence the Elkins line of cases), or to an arrest (and
hence the Di Re line of cases), or, as in the present case, to both a
search and an arrest (and hence an uncertain result).  In our view,
the facts of this case point out the need for a uniform federal rule
in all circumstances (see pages 17-18 note 14, infra).

   In any event, it is worth noting that no illegal arrests occurred
in this case, even under state law.  By the time Officer Huff arrested
respondent Mungia, he could have made a lawful citizen's arrest under
article 14.01(a) of the Texas Criminal Procedure Code Annotated
because he knew that a felony (possession of marijuana) was being
committed in his presence.  His knowledge came from his search of the
tanker, the validity of which turns on federal law (Elkins, supra).
Similarly, it appears that Huff, even acting as a game warden, could
have arrested Garcia, Barrera-Saenz and Garza-Soliz for a traffic
violation (see Christopher v. State, supra) because he observed their
pickup truck driving on a public highway at night without any lights.
Alternatively, Huff could have made a legitimate citizen's arrest
because he observed marijuana residue in plain view in the bed of the
pickup truck.  These points, which the government did not assert below
and which are not independently worthy of this Court's review, are
noted here only to demonstrate the incongruous result reached by the
court of appeals.

   /9/ We note preliminarily that the court of appeals did not hold
that any arrest that violates state law is itself a violation of the
Fourth Amendment;  on the contrary, the court expressly disavowed
making any constitutional ruling (App. A, infra, 5a n.6).  This is in
accord with the views expressed by Professor LaFave (1 W. LaFave,
Search and Seizure, A Treatise on the Fourth Amendment Section 1.3, at
51-52 (1978), quoting Traynor, Mapp v. Ohio at Large in the Fifty
States, 1962 Duke L.J. 319, 328):

      (U)nquestionably there is no constitutional requirement that
      evidence obtained in another jurisdiction be suppressed merely
      because the process of acquisition offended some local law.  The
      argument that 'local rules * * * will have constitutional
      sanction, for whatever action is illegal is perforce
      unreasonable,' has not prevailed.

   /10/ We recognize, of course, that Congress may provide for the
suppression of evidence even when there has been no constitutional
violation.  See, e.g., 18 U.S.C. 2515 (fruits of unlawful wiretap not
admissible).  But there is no federal statute or rule relevant to this
case, and thus the focus must be on constitutional considerations.

   /11/ Compare United States v. Soto-Soto, 598 F.2d 545 (9th Cir.
1979), in which the court of appeals held that an FBI agent's lack of
statutory authority to conduct border searches rendered the search in
question subject to normal Fourth Amendment standards rather than the
special rules applicable to border searches;  the court then ordered
suppression of the evidence because the agent had neither reasonable
suspicion nor probable cause for the stop and search in question.  In
a subsequent case, the Ninth Circuit made it clear that the evidence
in Soto-Soto was suppressed not merely because the agent acted in
excess of his statutory authority but because the search was found to
have been unconstitutional.  United States v. Harrington, 681 F.2d
612, 615 (1982).  See also United States v. Vasser, 648 F.2d 507, 511
n.3 (9th Cir. 1980), cert. denied, 450 U.S. 928 (1981);  United States
v. Johnson, 641 F.2d 652, 659 n.5 (9th Cir. 1980).

   /12/ These cases acknowledge an exception to this general rule only
in the rare instance in which the defendant is prejudiced by the
nonconstitutional violation or the violation is committed in
deliberate disregard of Rule 41, Fed. R. Crim. P.  Such an exception
could not possibly apply here.  Respondents were not prejudiced simply
because they were stopped by one type of state officer instead of
another.  As we have shown, the officers' conduct fully comported with
constitutional requirements.  Nor is there any suggestion in this case
of intentional misconduct on the part of the game wardens.  Officer
Huff repeatedly testified that he believed that he was a certified
peace officer under Texas law (Tr. 60, 132-133, 150-151, 197), and
this belief, as we will presently show (see pages 19-21, infra), was
entirely reasonable at the time of the events in question.

   /13/ The distinction, for purposes of the exclusionary rule,
between "unconstitutional" actions and "illegal" actions is implicit
in Elkins v. United States, supra, 364 U.S. at 224, and was expressly
recognized by Justice Frankfurter in his dissent in that case, in
which he objected strenuously to the majority's distinction between
the "'unconstitutionality' of police conduct, as distinguished from
its mere illegality under state or federal law" (id. at 243).

   /14/ The Court has never explained the dichotomy between Elkins v.
United States, supra, which holds that the validity of searches and
seizures is to be tested by federal law, "neither enlarged by what one
state court may have countenanced, nor diminished by what another may
have colorably suppressed" (364 U.S. at 224), and United States v. Di
Re, supra, which holds that, absent a controlling federal statute, the
validity of a warrantless arrest is determined according to the law of
the state in which the arrest occurred (332 U.S. at 589).  In Di Re,
the Court relied in part on the absence of "any general federal law of
arrest" (id. at 590).  But there is likewise no general federal law of
search and seizure except that which this Court has created.
Reasoning from cases such as Terry v. Ohio, 392 U.S. 1 (1968), at
least one court has concluded that this Court has, subsequent to Di
Re, effectively created general federal law governing arrests and that
Elkins implicitly overruled Di Re.  United States v. Miller, 452 F.2d
731, 733 (10th Cir. 1971), cert. denied, 407 U.S. 926 (1972);  United
States v. Alberty, 448 F.2d 706 (10th Cir. 1971).  The view that
federal law governs the validity of state arrests for purposes of
federal trials has recently been endorsed by the Sixth Circuit.
United States v. Porter, No. 81-5617 (Mar. 10, 1983), slip op. 13.

   In any event, it is apparent from cases such as the instant one
that the Di Re rule produces anomalous results.  There is no logic to
the proposition that the outcome of a federal criminal prosecution
should turn on technical idiosyncracies peculiar to the state in which
the law enforcement activity occurred.  It thus might be appropriate
for the Court to reconsider Di Re and its progeny.  Such
reconsideration is not essential in this case, however, because, as we
demonstrate in text, even Di Re cannot support the result reached by
the court of appeals.

   /15/ The same distinction is apparent in other cases following Di
Re.  See, e.g., Ker v. California, supra, 374 U.S. at 37-38 (state
"knock-and-announce" rule);  Miller v. United States, supra, 357 U.S.
at 306 (same);  Johnson v. United States, 333 U.S. at 15 & n.5 (state
rule permitting warrantless felony arrests only upon "reasonable
cause" to believe the defendant guilty).

   /16/ We have presented our arguments in support of a "reasonable
mistake" exception to the exclusionary rule in Gates and need not
repeat them here.  We are furnishing respondents' counsel with copies
of our brief in Gates (Supplemental Brief for the United States as
Amicus Curiae Supporting Reversal (filed Jan. 13, 1983)), in which
those arguments are set forth.

   /17/ Texas' exclusionary rule (Texas Criminal Procedure Code Ann.
art. 38.23 (Vernon 1979)) is contained in the chapter of the Code
entitled "Evidence of Criminal Actions." Thus, Texas' exclusionary
rule is as much a rule of evidence as is the federal exclusionary rule
developed by this Court.

   /18/ Prior to the adoption of Rule 402, this Court had held that
its supervisory power over the administration of justice in the
federal courts enabled it to fashion rules governing the admissibility
of evidence in federal criminal trials, whether or not such rules were
constitutionally required.  McNabb v. United States, 318 U.S. 332, 341
(1943).  But it is doubtful whether the McNabb rule survived the
passage of the Federal Rules of Evidence.  In enacting those rules,
Congress specifically addressed the question of this Court's authority
to make amendments;  in discussing Rule 402, the House Report
explained (H.R. Rep. No. 93-650, 93d Cong., 1st Sess. 7 (1973)):

         Rule 402 as submitted to the Congress contained the phrase
      "or by other rules adopted by the Supreme Court".  To
      accommodate the view that the Congress should not appear to
      acquiesce in the Court's judgment that it has authority under
      the existing Rules Enabling Acts to promulgate Rules of
      Evidence, the Committee amended the above phrase to read "or by
      other rules prescribed by the Supreme Court pursuant to
      statutory authority" in this and other Rules where the reference
      appears.

   At the same time, Congress enacted 28 U.S.C. 2076, which increased
the role of Congress in the evidence rulemaking process.  See H.R.
Rep. No. 93-650, supra, at 18.  Thus, we believe that the "supervisory
power" relied on in McNabb no longer furnishes sufficient authority
for a federal court to modify Rule 402's requirement that all relevant
evidence be admitted, subject only to the listed exceptions.  Because
the "evidentiary rule" adopted by the Fifth Circuit in this case does
not fit within Rule 402's exceptions, it could be enforced only if
enacted in conformity with the procedures established in 28 U.S.C.
2076.

   In any event, this case is clearly an inappropriate vehicle for the
exercise of a federal court's "supervisory power" to order
suppression.  The law enforcement techniques condemned in McNabb,
supra, 318 U.S. at 334-342, included interrogating the defendants, all
of whom were poorly-educated and without counsel, for several days
without ever bringing them before a magistrate or judge, as required
by statute.  No such questionable practices occurred in the instant
case.

   Appendix Omitted