MICHAEL F. MURRAY, PETITIONER V. UNITED STATES OF AMERICA

   JAMES D. CARTER, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-995 and 86-1016

   In the Supreme Court of the United States

   October Term, 1986

   On Petitions for a Writ of Certiorari to the United States Court of
Appeals for the First Circuit

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Question presented
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals on remand from this Court (Pet.
App. 52a-61a) /1/ is reported at 803 F.2d 20.  The order denying a
petition for rehearing (Pet. App. 62a-64a) is not yet reported.  The
original opinion of the court of appeals (Pet. App. 1a-31a), as
modified (Pet. App. 50a-51a), is reported at 771 F.2d 589.  The orders
of the district court (Pet. App. 32a-48a;  86-1016 Pet. App. 44a-46a)
are unreported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 65a) was entered on
October 7, 1986.  A petition for rehearing was denied on October 31,
1986.  The petition for a writ of certiorari in No. 86-995 was filed
on December 17, 1986.  The petition in No. 86-1016 was filed on
December 20, 1986.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether evidence observed but not seized during a warrantless
entry into a building should be suppressed if it would inevitably have
been discovered during the subsequent search of the building pursuant
to a valid search warrant.

   2. Whether the court of appeals correctly computed the time
excludable under 18 U.S.C. 3161(h)(1)(J) for the disposition of
pretrial motions in determining whether the Speedy Trial Act, 18
U.S.C. (& Supp. III) 3161 et seq., was violated.

                               STATEMENT

   Following a jury trial in the United States District Court for the
District of Massachusetts, petitioners were convicted on one count of
conspiracy to possess a quantity of marijuana in excess of 1000 pounds
with intent to distribute it, in violation of 21 U.S.C. 841 and 846.
Each was sentenced to four years' imprisonment and fined $15,000.  The
court of appeals affirmed.  Following the decision in Henderson v.
United States, No. 84-1744 (May 19, 1986), this Court vacated the
judgment of the court of appeals and remanded the case for further
consideration in light of Henderson.  Nos. 85-1105 and 85-1118 (May
27, 1986).  On remand, the court of appeals again affirmed
petitioners' convictions.

   1. The evidence developed at a suppression hearing and at trial is
summarized in the initial opinion of the court of appeals (Pet. App.
10a-12a).  The FBI learned from informants that, between early 1982
and March 1983, co-defendant John Rooney, Arthur Barrett, and others
were involved in a large-scale marijuana importation and distribution
network operating out of a garage in South Boston.  Consequently, in
July 1982 the agents commenced surveillance of the suspects'
activities, verified their regular association, and learned from other
informants that they maintained a warehouse somewhere in South Boston
in which they stored marijuana.

   On April 5 and 6, 1983, the agents observed petitioners and others
engaged in a pattern of activity that included clandestine efforts to
load, transport, and deliver material in a white Ford truck, a green
camper, and a blue van.  During the early afternoon of April 6, the
agents stopped the green camper on the Massachusetts Turnpike and
arrested the driver, co-defendant Christopher Moscatiello.  One of the
agents observed burlap-covered bales inside the camper.  On
examination pursuant to a search warrant, the bales were found to
contain marijuana.  Other agents followed the white Ford pickup truck
driven by Rooney from the time it left the warehouse until it stopped
in a driveway at a private residence.  The agents arrested Rooney and
searched the truck, finding approximately 60 bales of marijuana.
While that search was taking place, other agents stopped the blue van
and arrested petitioners.  Pet. App. 10a-11a.

   The agents then converged on the warehouse where the vans
apparently had been loaded.  There, they saw a man pacing back and
forth in front of the building;  the man appeared to be observing
traffic as it passed.  After the agents drove around the block,
however, the man disappeared.  Shortly thereafter, other agents
arrived on the scene.  They tried to determine whether anyone was
inside the building by banging on the door and announcing the presence
of law enforcement officers.  When those efforts proved unsuccessful,
the agents made a warrantless forced entry of the building "in an
effort to apprehend any participants who might have remained inside
and to guard against the destruction of possibly critical evidence"
(Pet. App. 42a).  The agents made a brief walkthrough of the premises,
determined that no one was inside, and then departed and guarded the
building from the outside.  In the course of walking through the
building, the agents detected a strong odor of marijuana and observed
many burlap-wrapped bales, which they suspected contained marijuana.
Id. at 11a-12a.

   Following their departure, the agents obtained a warrant to search
the building.  In their application for the warrant, the agents did
not mention the warrantless entry and did not make use of any
information they had obtained as a result of that entry.  Execution of
the warrant resulted in the seizure of approximately 500 bales of
marijuana, which were each marked with tapes bearing numbers.  The
agents also seized notebooks listing the customers whose names
corresponded with the numbers on the bales.  Pet. App. 12a.

   2. Before trial, petitioners moved to suppress the marijuana seized
from the warehouse.  They alleged that the warrantless entry into the
warehouse, during which the marijuana bales were seen, was unlawful
and vitiated the subsequent seizure of the bales pursuant to the
search warrant.  The district court denied the motion (Pet. App.
32a-48a), and the court of appeals affirmed (id. at 1a-31a).  The
court of appeals held that the warehouse search warrant was not
invalidated by the failure of the application to mention the earlier
warrantless entry of the building (id. at 26a-27a).  The court also
rejected petitioners' argument that the marijuana bales observed
during that entry must be suppressed.  The court found it unnecessary
to resolve whether the warrantless entry was justified by exigent
circumstances -- specifically, the need to avert the possibility that
evidence would be destroyed by persons who may have been inside.  The
court noted that the district court's failure to make findings on the
question of exigency made it difficult to address that issue (id. at
24a).  /2/ Assuming arguendo that the warrantless entry was unlawful,
the court reasoned that, because the bales of marijuana were in plain
view, they would inevitably have been discovered as the result of the
subsequent lawful warrant search.  Under the principles of Segura v.
United States, 468 U.S. 796 (1984), and Nix v. Williams, 467 U.S. 431
(1984), the court concluded therefore that there was not a sufficient
nexus between the assumed illegality and the evidence in question to
justify suppression (Pet. App. 24a-28a).

   3.a. Petitioners and other co-defendants were indicted on April 20,
1983.  On May 9, 1983, they filed various pretrial motions.  Some of
the motions sought suppression of the evidence seized;  others sought
other forms of relief such as severance, election of counts, and
specification of the order of the government's proof.  On October 17,
1983, the district court completed hearings on the motions to suppress
and took them under advisement.  The motions for severance and other
forms of relief were denied on December 21, 1983;  the motions to
suppress were denied on December 23, 1983.  Trial began one month
later, on January 23, 1984.  Pet. App. 5a-6a.

   On the day the trial began, petitioners moved to dismiss the
indictment on the ground that the Speedy Trial Act, 18 U.S.C. (& Supp.
III) 3161 et seq., had been violated.  In connection with the motion,
they conceded that 195 days were excludable under the Act;  in its
subsequent order, the district court noted that an additional eight
days were excludable because of the pendency of a government motion to
use charts at trial -- a finding that is not challenged by
petitioners.  These exclusions yielded an uncontested total amount of
excludable time of 203 days, which left only five days in excess of
the 70-day maximum prescribed by the Act. Pet. App. 4a-9a.

   b. The district court denied the motion to dismiss (86-1016 Pet.
App. 44a-45a).  The court noted that under 18 U.S.C. 3161(h)(1)(J)
only 30 days of the period between the October 17 suppression hearing
and the December 23 ruling could be excluded as attributable to
consideration of the suppression motions.  The court explained,
however, that the other pending motions, some of which concerned the
ordering of the presentation of the government's evidence, would have
been mooted if a suppression order had been entered;  hence, those
motions were not taken under advisement until the suppression motions
were resolved.  Those motions, the court reasoned, were not subject to
the 30-day limit of Section 3161(h)(1)(J) for consideration of
motions, but were covered by the provisions of Section 3161(h)(1)(F),
which excludes "delay resulting from any pretrial motion, from the
filing of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion." Under the latter provision,
the trial court concluded that, even though the motion to suppress was
under advisement for more than the 30-day period excludable under
Section 3161(h)(1)(J), the additional period was not an unreasonable
time "given the complexity of the testimony and the difficulty of
determining the extent to which subjective judgment * * * should
support a finding of probable cause" (86-1016 Pet. App. 45a-46a).
Because the rulings on the suppression motions could have been
dispositive of the nonsuppression motions, the court stated that "it
was reasonable to hold (those latter) motions until I had decided the
motion to suppress" (id. at 45a).  Consequently, the court held that
the full period between the filing of the motions and their
disposition, representing 35 additional days not conceded by
petitoners, was properly excludable (id. at 46a).

   c. The court of appeals affirmed this ruling also (Pet. App.
4a-10a).  In its initial opinion, the court rejected petitioners'
contention (not renewed in this Court) that the 30-day period between
October 17, 1983, and November 16, 1983, could not be excluded under
Section 3161(h)(1)(J) without a showing that the court was actually
considering the motions on each one of those days.  Then, addressing
the period "through December 23, 1983, during which the * * *
(non-suppression) motions were pending," the court held that the time
was excludable under Section 3161(h)(1)(F) because it was reasonable
for the district court to have withheld decision on those motions.
Accordingly, the court of appeals concluded that the total
nonexcludable time amounted to only 45 days and that the Speedy Trial
Act was not violated.  Pet. App. 9a-10a.

   d. Petitioners sought rehearing, noting that, according to the
docket sheet and the district court's own statements, the
nonsuppression motions were decided on December 21, 1983, rather than
on December 23, 1983, as both the district court and the court of
appeals apparently had assumed.  Accordingly, they argued that it
could not have been necessary for the district court to dispose of the
suppression motions before ruling on the others.  Therefore,
petitioners argued, no portion of the period after the suppression
hearing should have been excludable under Section 3161(h)(1)(F).  The
court of appeals amended its opinion "(f)or purposes of
clarification," but otherwise denied the rehearing petition without
opinion (Pet. App. 50a-51a).  The amended opinion noted that the court
was not holding "that more than 30 days can be excluded under section
3161(h)(1)(J) for deciding the suppression motions" or that the entire
period following the suppression hearing was excludable.  The amended
opinion also omitted the conclusion (Pet. App. 51a) that the total
nonexcludable time amounted to 45 days and substituted the conclusion
that the total nonexcludable time "did not exceed 70 days" and that
the Speedy Trial Act was not violated.  Ibid.

   e. Last Term, petitioners filed petitions in this Court claiming
both that the 70-day limit of the Speedy Trial Act had been exceeded
and that the bales of marijuana seized from the warehouse should have
been suppressed (Nos. 85-1105 and 85-1118).  On May 27, 1986, this
Court granted the petitions, vacated the judgment of the court below,
and remanded for further consideration in light of Henderson v. United
States, No. 84-1744 (May 19, 1986).  /3/ Henderson construed 18 U.S.C.
3161(h)(1)(F), the pretrial motion provision of the Speedy Trial Act.

   f. On remand, the court of appeals reexamined the speedy trial
issue and again affirmed (Pet. App. 52a-61a).  The court once again
noted that all parties agreed that "the 30 days from October 17 (when
the district court completed hearings on the suppression motions) to
November 16, 1983, were excludable as being the 30 days provided in
(Section 3161(h)(1)(J)) for motions that are 'actually under
advisement by the court'" (Pet. App. 53a).  The court further observed
that, if at least five days following November 16 could be excluded
from speedy trial calculations, the 70-day limit of the Act would not
be exceeded (ibid.).  The court then held that the requisite number of
days could be excluded under subsection (J) as time during which the
nonsuppression motions were "under advisement." The court reasoned
that the nonsuppression motions were not in a position to be taken
under advisement until the case-dispositive suppression motions were
decided, which occurred sometime in mid-December.  Even if the
suppression motions should have been decided by November 16, 1983 --
30 days after the conclusion of the suppression hearing -- the
district court was "still entitled to further credit for up to 30 days
additional time within which to decide the non-suppression motions,
since these latter motions were not ripe for decision -- i.e., were
not actually 'under advisement' -- until the underlying suppression
motions were resolved." Pet. App. 57a.  In reaching this conclusion,
the court of appeals relied on this Court's decision in Henderson,
which permitted "'an exclusion of 30 days from the time a motion is
actually "under advisement" by the court'" (Pet. App. 58a (quoting
Henderson, slip op. 8)).  "Since, in fact, only five (of those 30)
additional days were needed to comply with the Speedy Trial Act," the
court of appeals found that the trial was timely (Pet. App. 58a).

   Judge Coffin dissented (Pet. App. 58a-61a).  In his view, only the
days following November 16 during which the nonsuppression claims were
actually being considered by the district court could be excluded from
speedy trial computations under subsection (J).  Because the record
does not specifically disclose how much time the district court
devoted to the nonsuppression motions after deciding the suppression
motions, Judge Coffin would have remanded the case for the district
court to specify how much time it devoted to those motions.  Pet. App.
59a-61a.  Judge Coffin did not take issue with the majority opinion in
any other respect.

   g. In a rehearing petition, petitioners charged that the court of
appeals had not been faithful to this Court's decision in Henderson.
86-1016 Pet. App. 50a-61a.  In an order denying the petition the court
of appeals unanimously rejected petitioners' suggestion that this
Court in Henderson had passed on the question that they presented
(Pet. App. 63a).  The court rejected the assertion that Henderson
"state(s) that where a judge cannot sensibly decide one motion unless
he first resolves another one, that the former, unripe one is 'under
advisement' from the time the necessary papers have arrived" (ibid.).
In the court's view, Henderson did not squarely address this question,
but language in Henderson supported its finding of no speedy trial
violation in this case (id. at 63a-64a).

                               ARGUMENT

   1. Petitioners contend (86-995 Pet. 10-23) that the bales of
marijuana seized from the warehouse pursuant to a lawfully obtained
warrant should be suppressed because the investigating agents had seen
the bales during a prior, warrantless protective sweep of the
warehouse, which, petitioners allege, was not justified by exigent
circumstances.  Petitioners do not dispute that, at the time of the
protective sweep, the agents already had probable cause to obtain a
search warrant for the warehouse.  Nor do they dispute that the
subsequently obtained warrant was issued solely on the basis of
information gathered by the agents before the warrantless entry.
Indeed, the observation of the bales during the agents' initial entry
contributed nothing to the agents' decision to search the warehouse.
And, of course, the agents did not "seize" the marijuana until the
untainted warrant was obtained." /4/ In these circumstances, both
courts below properly refused to suppress the marijuana on the ground
that the marijuana would inevitably have been discovered during the
course of the warrant search.

   a. Significantly, petitioners do not dispute that the marijuana
would inevitably have been discovered pursuant to the warrant search.
But they urge this Court not to apply the inevitable discovery
doctrine, adopted in Nix v. Williams, 467 U.S. 431 (1984), to the
facts of this case because to do so will encourage agents to disregard
the Fourth Amendment by searching first and seeking a warrant later.
That prediction, however, is baseless.

   The inevitable discovery doctrine, like its close cousin the
independent source doctrine (see Segura v. United States, 468 U.S. 796
(1984);  Silverthorne Lumber Co. v. United States, 251 U.S. 385
(1920)), presupposes that some arguably illegal police conduct has
occurred.  The doctrine does not reward or encourage such misconduct.
But it recognizes that, if the prosecution can establish by a
preponderance of the evidence "that the information ultimately or
inevitably would have been discovered by lawful means * * * then the
deterrence rationale has so little basis that the evidence should be
received" (Nix v. Williams, 467 U.S. at 440 (footnote omitted)).

   To suppress evidence in that setting, the Court stated, "would
place courts in the position of withholding from juries relevant and
undoubted truth that would have been available to police absent any
unlawful police activity" (467 U.S. at 445).  The inevitable discovery
doctrine is designed to avoid "put(ting) the police in a worse
position" (ibid.) than if no illegality had occurred, and it applies
only in cases where "the police would have obtained (the) evidence if
no misconduct had taken place" (id. at 444).  As the Court noted in
Nix (id. at 445-446), if the discovery of evidence by lawful means is
truly "inevitable," so that the doctrine should apply, the police have
little to gain by seeking to discover it by unlawful means.
Consequently, application of the inevitable discovery doctrine to the
facts of this case will not induce the police to search first and
obtain a warrant later, as petitioners suggest.

   b. Contrary to petitioners' claim (86-995 Pet. 10-11), there is no
tension between the decision of the court below and this Court's
decision in Segura v. United States, supra.  Petitioners suggest that
the decision below is inconsistent with Segura because the Court there
noted (468 U.S. at 804) that "(e)vidence obtained as a direct result
of an unconstitutional search or seizure is plainly subject to
exclusion." /5/ But this statement in Segura is quite unexceptional in
its context and has nothing to do with the question presented here.
First, the evidence in question here was not obtained as a result of
an unconstitutional search;  it was obtained by means of a valid
search warrant.  The question is whether it is significant that the
evidence had been observed earlier during an unlawful entry.
Moreover, the "inevitable discovery" doctrine does not come into play
unless the evidence in question is "'in some sense the product of
illegal government activity'" (Nix, 467 U.S. at 444 (quoting, and
adding emphasis to, United States v. Crews, 445 U.S. 463, 471 (1980));
 the doctrine establishes that such evidence should not be excluded if
it would inevitably have been discovered through lawful means.  Hence,
for petitioners to assert that the marijuana is subject to exclusion
under long-established Fourth Amendment principles because it was
initially discovered in the course of an illegal search (see 86-995
Pet. 22) is simply to pose the question presented in this case --
whether the bales are nonetheless admissible under the inevitable
discovery doctrine -- not to answer it.  /6/

   c. Petitioners claim that the decision below conflicts with the
decisions of numerous courts of appeals and the highest courts of
several states.  /7/ There is, however, no true conflict between the
decision below and a binding decision of any other federal court of
appeals or the highest court of any jurisdiction.  In the absence of
any such conflict, further review is not warranted.

   (i) The majority of the cases on which petitioners rely predate Nix
v. Williams, 467 U.S. 431 (1984).  Most of the pre-Nix cases are
distinguishable from the present case, but a few, if still adhered to,
would not be.  /8/ Nix, however, establishes a number of important
principles that make it highly questionable whether the courts that
decided those cases will adhere to them.  /9/

   Nix was the first case in which this Court endorsed the "inevitable
discovery" exception to the exclusionary rule.  /10/ In so doing, Nix
"reaffirmed" (86-995 Pet. 16) the law followed in most of the lower
courts, but that is not all that Nix did.

   Nix squarely rejected a rule that would require a showing of police
"good faith" in order for the inevitable discovery rule to apply (467
U.S. at 445-446) and thus undermined many of the cases on which
petitioners rely.  /11/ The Nix majority also indicated that the
exclusionary sanction is inappropriate when it "would put the police
in a worse position than they would have been in if no unlawful
conduct had transpired" (467 U.S. at 445).  /12/ The Court explained
that in inevitable discovery situations invocation of that sanction is
unnecessary as a deterrent to unlawful police behavior (id. at
445-446):

         when an officer is aware that the evidence will inevitably be
      discovered, he will try to avoid engaging in ay questionable
      practice.  In that situation, there will be little to gain from
      taking any dubious "shortcuts" to obtain the evidence illegally
      -- including the possibility of departmental discipline and
      civil liability -- also lessen the likelihood that the ultimate
      or inevitable discovery exception will promote police
      misconduct.  * * * In these circumstances, the societal costs of
      the exclusionary rule far outweigh any possible benefits to
      deterrence that a good-faith requirement might produce.

   Virtually every pre-Nix case on which petitioners rely, to the
extent it is apposite at all, is based on the contrary theory that the
exclusionary rule is an appropriate deterrent to unlawful police
behavior in inevitable discovery situations, even when it puts police
in a worse situation than they would have been in if no unlawful
activity had taken place.  /13/ Whether any of those decisions
survives Nix is an open question.  The pre-Nix cases on which
petitioners rely therefore do not provide a sufficient basis for this
Court to grant certiorari.

   (ii) Petitioners assert, however, that there is a conflict between
the decision below and several post-Nix cases.  That claim is
incorrect.  Indeed, the three circuits that have squarely confronted
the question since Nix have uniformly refused to suppress evidence
observed during an illegal entry but later seized pursuant to an
untainted warrant whose issuance was inevitable.  See United States v.
Salgado, No. 85-3209 (7th Cir. Dec. 5, 1986);  United States v.
Silvestri, 787 F.2d 736 (1st Cir. 1986), petition for cert. pending,
No. 86-678;  United States v. Merriweather, 777 F.2d 503 (9th Cir.
1985), cert. denied, No. 85-6384 (Mar. 31, 1986).

   Two of the federal cases on which petitioners rely simply do not
resolve (or imply any resolution of) questions under the inevitable
discovery doctrine or the independent source doctrine.  /14/ As
petitioners concede, the language that they quote from two post-Nix
decisions of state courts of last resort is dictum, /15/ as is the
footnote that they quote from United States v. Echegoyen, 799 F.2d
1271, 1280 n.7 (9th Cir. 1986).  /16/ In United States v. Owens, 782
F.2d 146 (10th Cir. 1986), the government never obtained a warrant,
and the court's decision does not reflect any government argument that
discovery pursuant to a warrant was inevitable, let alone any holding
on that subject.  /17/ Likewise, in United States v. Cherry, 759 F.2d
1196 (5th Cir. 1985), the government never obtained a warrant, and its
"inevitable discovery" argument, in stark contrast to this case, was
based on the purely hypothetical proposition that the government would
inevitably have obtained a warrant if it had not engaged in an illegal
warrantless search.  Finally, in United States v. Satterfield, 743
F.2d 827 (11th Cir. 1984), cert. denied, 471 U.S. 1117 (1985), unlike
this case, the government actually conducted a full-blown warrantless
search (rather than a protective sweep) during which it physically
seized the evidence in issue.  The government subsequently went
through the ritual of obtaining a warrant (see 743 F.2d at 845), but
even then it appears that the warrant was never executed.  /18/

   In sum, although petitioners vigorously seek to portray the federal
courts of appeals and state courts of last resort as being in disarray
on the question presented, they are not.  Accordingly, further review
of the well-reasoned opinion of the court below on the exclusionary
rule issue is unwarranted.

   2. The court of appeals correctly found that petitioners' rights
under the Speedy Trial Act had not been violated.  The Speedy Trial
Act requires that trial begin within 70 days of indictment or the
defendant's first court appearance, whichever last occurs.  18 U.S.C.
3161(c)(2).  That 70-day period, however, is expanded by periods of
excludable delay.  18 U.S.C. (& Supp. III) 3161(h)(1)-(9).  Section
3161(h)(1)(J) excludes a maximum of 30 days during which a pretrial is
"under advisement."

   In this case, petitioners and their co-defendants filed two groups
of motions.  The first group consisted of various suppression claims,
which, if successful, would have necessitated dismissal of some or all
of the charges.  The second group can be classified as nondispositive
motions -- motions seeking such relief as severance, election of
counts, and specification of the order of the government's proof.
Petitioners contend that the 30-day "under advisement" period for
these nondispositive motions began to run once all the papers on the
motions were filed.

   The courts of appeals disagreed and held that the 30-day period did
not begin to run until the district court had decided -- or until it
should have decided -- the suppression claims.  The court reasoned
that, until the suppression claims were decided, the district court
did not know whether the case would actually proceed to trial.
Accordingly, up to that point the nondispositive motions were not yet
ripe.  Consequently, it would have been inefficient and imprudent for
the district court to have taken the nondispositive motions under
advisement until it had decided to deny the suppression claims.  /19/

   Petitioners point to nothing in the language of the Speedy Trial
Act contradicting the court's application of the Act to the facts of
this case.  Instead, they argue that the decision of the court of
appeals conflicts with Henderson v. United States, No. 84-1744 (May
19, 1986).  It does not.

   In Henderson, this Court considered how much time can be excluded
for pretrial motions under Section 3161(h)(1)(F), which excludes
"delay resulting from any pretrial motion, from the filing of the
motion through the conclusion of the hearing on, or other prompt
disposition of, such motion." The Court held that the subsection (F)
exclusion cannot extend beyond the point at which the motion is taken
"under advisement." Any excludable delay pertaining to the motion from
that point forward is governed by subsection (J), the "under
advisement" exclusion.  Slip op. 7-8.

   Nothing in the Henderson opinion, however, purports to restrict the
date on which a motion must be taken "under advisement." Henderson
merely holds that, for motions decided on the papers without a
hearing, the subsection (F) exclusion will normally end when all of
the papers pertaining to the motion are filed with the court.  Slip
op. 7.  But this construction of subsection (F) does not prevent a
court from postponing consideration of a motion until some later event
occurs, such as the decision of a case-dispositive motion.  /20/ At
that point, the 30-day subsection (J) exclusion begins.  In short,
Henderson establishes the ending point for the subsection (F)
exclusion;  it does not fix a starting point for the subsection (J)
exclusion other than the date on which the court actually takes the
motion under advisement, which in this case was not until the
suppression motions had been decided.

   As petitioners must acknowledge, there is at present no conflict
among the circuits on this speedy trial issue.  /21/ Petitioners
nevertheless predict that the issue will arise in most criminal cases.
 If that prediction is correct, further explication of the issue from
the circuits will be forthcoming.  If a conflict develops, it may some
day warrant resolution.  At this time, however, there is no reason to
review further the sensible construction accorded to subsection (J) by
the court below.  /22/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   PATTY MERKAMP STEMLER

      Attorney

   FEBRUARY 1987

   /1/ "Pet. App." refers to the appendix to the petition filed by
petitioner Murray in No. 86-995.  "86-1016 Pet. App." refers to the
appendix to the petition filed by petitioner Carter.

   /2/ Petitioners incorrectly state (86-995 Pet. 8) that the court of
appeals indicated that there were no exigent circumstances.  The court
did not resolve the issue.

   /3/ Justice Stevens voted to deny the petitions.

   /4/ As petitioners note (86-995 Pet. 14), the First Circuit, after
deciding their case, adopted the unique and surprising theory that,
when premises are secured, all evidence (and only the evidence)
observed during a prior warrantless entry is thereby "seized." United
States v. Silvestri, 787 F.2d 736, 739-740 (1986), petition for cert.
pending, No. 86-678.  Contra, e.g., United States v. Merriweather, 777
F.2d 503, 506 (9th Cir. 1985), cert. denied, No. 85-6384 (Mar. 31,
1986).  We disagree with that novel approach, which to our knowledge
is supported by no other court of appeals, but whatever its merits it
is of no help to petitioners.  The sole import of this analysis by the
court of appeals was that the court determined that it is the
"inevitable discovery" doctrine rather than the cognate "independent
source" doctrine that applies to cases involving evidence observed
during an illegal prewarrant search (787 F.2d at 740).  Since the
court of appeals in this case applied the requirement that the lawful
discovery of the pertinent evidence be "inevitable," its analysis is
consistent with Silvestri.  See also United States v. Salgado, No.
85-3209 (7th Cir. Dec. 5, 1986), slip op. 9 (court need not resolve
whether observation of evidence followed by securing of premises
constitutes "seizure," since "whether there is an interim illegal
seizure of evidence is irrelevant to the issue of exclusion, provided
there is (as there is here) very great confidence that the evidence
would have been obtained for use at trial even if there had not been
that seizure").

   /5/ The court of appeals quoted this passage from Segura and
indicated that "(a)rguably" it "hinted at" a result different from the
one that the court ultimately reached (Pet. App. 28a).  Petitioners
seriously overstate their claim that the court of appeals indicated
that it was departing from Segura (86-995 Pet. 8, 10).

   /6/ The misdirection of petitioners' argument is highlighted by
their erroneous reliance on the government's brief in Segura.  As
petitioners note (86-995 Pet. 11-12 n.10), the government stated that
"evidence discovered in the course of an illegal search ordinarily
should be excluded." U.S. Br. at 13, Segura v. United States, 468 U.S.
796 (1984).  But that general statement is subject to qualification,
inter alia, by the inevitable discovery and independent source
doctrines.  The government explicitly stated in its brief (at 36 n.21)
that, if the Court were to adopt the inevitable discovery doctrine in
Nix, it would be incorrect to suppress evidence seen during a
warrantless security check that would inevitably have been discovered
anyway during the later execution of a search warrant.  And the Court
specifically reserved this issue in Segura (468 U.S. at 802-803 n.4).
Thus, petitioners' assertion that their it is supported by the
government's brief in Segura, like their assertion that it is
supported by the Court's opinion in that case, is faulty because it
ignores the inevitable discovery and independent source doctrines,
which are at the heart of the question presented here.

   /7/ Petitioners also claim (86-995 Pet. 18-19 & nn.25-27) that the
decision below conflicts with the decisions of intermediate appellate
courts in Florida, Idaho, and Maryland.  See also id. at 17 n.18
(discussing claimed conflict with decision of intermediate appellate
court in Colorado);  id. at 16 n.16 (discussing claimed conflict with
decision rendered by intermediate appellate court in Alaska, but
mistakenly cited as decision of highest court of Alaska).  We disagree
with that claim, but we do not pause to distinguish these cases, since
a conflict between a federal court of appeals and a state court not of
last resort would not in any event be a sufficient basis for a grant
of certiorari.

   /8/ Petitioners' best pre-Nix cases are United States v. Segura,
663 F.2d 411, 417 (2d Cir. 1981), opinion after remand, 697 F.2d 300
(1982), aff'd on other grounds, 468 U.S. 796 (1984), and People v.
Barndt, 199 Colo. 51, 604 P.2d 1173 (1980) (en banc).  If the courts
that decided those cases were now to adhere to them, those decisions
could fairly be said to be in direct conflict with the decision below.
 At the other extreme, petitioners claim a conflict with such pre-Nix
cases as United States v. Congote, 656 F.2d 971 (5th Cir. 1981), which
does not even remotely touch on application of the inevitable
discovery or independent source doctrines.  Similarly, United States
v. Romero, 692 F.2d 699 (10th Cir. 1982), and United States v.
Alvarez-Porras, 643 F.2d 54 (2d Cir.), cert. denied, 454 U.S. 839
(1981), on which petitioners rely, uphold the admission of certain
evidence under the inevitable discovery doctrine and therefore
certainly contain no holding in conflict with the decision below.

   /9/ This is not to "beg the question presented by this case"
(86-995 Pet. 16 n.15);  rather, it is to say that the vitality of
those decisions is in doubt in the aftermath of Nix, and the question
presented may not have to be resolved by this Court if those decisions
are reexamined and revised in light of Nix.  If any court adheres to a
pre-Nix decision that is inconsistent with the decision in the present
case -- something that has not happened to date -- this Court will
have ample opportunity to resolve the real conflict that will then be
presented.

   /10/ The fact alone is sufficient to eliminate the alleged conflict
between the decision below and the pre-Nix law in the Sixth Circuit.
The Sixth Circuit decision said to be in conflict with the decision
below is United States v. Griffin, 502 F.2d 959, cert. denied, 419
U.S. 1050 (1974), in which the court held that there is no inevitable
discovery doctrine at all.  502 F.2d at 961 ("The assertion by police
* * * that the discovery was 'inevitable' because they planned to get
a search warrant and had sent an officer on such a mission, would as a
practical matter be beyond judicial review.  Any other view would tend
in actual practice to emasculate the search warrant requirement of the
Fourth Amendment.");  see also United States v. Apker, 705 F.2d 293,
306 (8th Cir. 1983) ("Only the Sixth Circuit has explicitly rejected
the inevitable discovery exception.  United States v. Griffin * * *
."), cert. denied, 465 U.S. 1005 (1984);  State v. Williams, 285
N.W.2d 248, 257-258 (Iowa 1979) (similar description of Griffin),
cert. denied, 446 U.S. 921 (1980).

   /11/ See, e.g., State v. Williams, 285 N.W.2d 248, 258 (Iowa 1979),
cert. denied, 446 U.S. 921 (1980);  State v. Holler, 459 A.2d 1143,
1147 (N.H. 1983) (dictum) ("good faith on the part of the police is
inherent in the inevitable discovery exception").  The language from
these cases that petitioners quote (86-995 Pet. 17 n.20, 19 n.28)
comes in the context of explication of the "good faith" requirement.
See also State v. Hansen, 295 Or. 78, 97, 664 P.2d 1095, 1105-1106
(1983) (en banc) (in case not involving any "inevitable discovery"
question, basing suppression on "purpose" of police officers in
effecting warrantless entry).  When squarely faced with an "inevitable
discovery" question, the Supreme Court of Oregon has followed the Nix
approach, not the Hansen approach.  See State v. Miller, 300 Or. 203,
225-229, 709 P.2d 225, 242-243 (1985), cert. denied, No. 85-6164 (Apr.
28, 1986).

   /12/ This important clarification of exclusionary rule doctrine,
which is utterly inconsistent with petitioners' theory, has been
recognized by the lower courts.  See, e.g., United States v.
Hernandez-Cano, No. 86-8288 (11th Cir. Jan. 23, 1987), slip op. 1254,
1255;  Hamilton v. Nix, No. 84-2089 (8th Cir. Jan. 20, 1987) (en
banc), slip op. 10;  United States v. Salgado, No. 85-3029 (7th Cir.
Dec. 5, 1986), slip op. 10.

   /13/ See, e.g., United States v. Segura, 663 F.2d at 417;  People
v. Barndt, 199 Colo. at 56, 604 P.2d at 1176;  People v. Cook, 22 Cal.
3d 67, 98-99, 583 P.2d 130, 148-149, 148 Cal. Rptr. 605, 623-624
(1978);  Commonwealth v. Benoit, 382 Mass. 210, 218-219, 415 N.E.2d
818, 823 (1981).  To the extent that courts in these jurisdictions
have decided similar issues after Nix, they have looked primarily to
Nix rather than to their own pre-Nix cases for guidance.  See People
v. Steeg, 175 Cal. App. 3d 665, 688, 220 Cal. Rptr. 904, 917-918
(1985) (after Nix, accepting theory that evidence initially discovered
by illegal warrantless search may be admitted under inevitable
discovery doctrine), review granted, 715 P.2d 564, 224 Cal. Rptr. 605
(1986);  Commonwealth v. Frodyma, 393 Mass. 438, 471 N.E.2d 1298
(1984) (following Nix).  A lower court in Colorado has rendered a
post-Nix decision that, although distinguishable from the decision
below, appears to be in some tension both with the decision below and
with Nix itself, but the Supreme Court of Colorado granted the State's
petition for certiorari on April 7, 1986.  People v. Schoondermark,
717 P.2d 504 (Colo. Ct. App. 1985).  It would thus be particularly
inappropriate for this Court to grant certiorari at this time to
review a claimed conflict between the decision below and the
interpretation of the Fourth Amendment by the Supreme Court of
Colorado.

   /14/ United States v. Dart, 747 F.2d 263 (4th Cir. 1984)
(suppressing evidence seized pursuant to warrant that was based on
information gathered in earlier illegal entry);  United States v.
Williams, 737 F.2d 735, 740 (8th Cir. 1984) (expressly declining to
decide whether admission of items seen during initial, warrantless
entry was error, because it was harmless error if error at all).

   /15/ See State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160,
171-172 (1986), cert. denied, No. 86-376 (Nov. 3, 1986);  State v.
Sugar, 100 N.J. 214, 240 n.3, 495 A.2d 90, 104 n.3 (1985).  In both
cases, the court left open for further proceedings on remand the
possibility that the evidence at issue could be admitted under the
inevitable discovery doctrine.  In addition, the cryptic footnote in
Sugar that petitioners cite has not been taken by the New Jersey
courts to mean that evidence discovered during an illegal warrantless
search cannot be admitted when it would inevitably have been
discovered during a later warrant-authorized search.  See State v.
DeLane, 207 N.J. Super. 45, 51-53, 503 A.2d 903, 905-907 (App. Div.
1986) (upholding admission of evidence seized pursuant to warrant
notwithstanding prior warrantless entry).

   /16/ The Echegoyen court held that no unlawful entry had occurred
in that case, so any suggestion about what the court might have done
if there had been an unlawful entry is dictum that does not bind any
subsequent Ninth Circuit panel.  Ninth Circuit panels are, however,
bound by the holdings of United States v. Merriweather, supra, and
United States v. Andrade, 784 F.2d 1431 (9th Cir. 1986), that evidence
may be admitted under the inevitable discovery doctrine despite
earlier illegal warrantless searches.  Petitioners' reliance (86-995
Pet. 15) on Judge Reinhardt's concurring opinion in Andrade is
altogether misplaced, since Judge Reinhardt spoke only for himself and
in any event did nothing more than criticize this Court's decisions.

   /17/ The government's argument in Owens was that a motel maid would
have found the evidence and reported it to the police (782 F.2d at
152-153).  The court simply rejected, as a factual matter, the
government's "highly speculative assumption of 'inevitability'" (id.
at 153).  Contrary to the position taken by petitioner Murray in his
amicus brief in No. 86-678, Silvestri v. United States, at 7, any
language in Owens about the need for a preexisting, independent police
investigation is not the "holding" of the case.

   /18/ There is, to be sure, language in Cherry and Satterfield that
purports to go far beyond the facts of those cases and set a per se
rule that evidence discovered during an unlawful warrantless entry can
never be admitted on the basis of a later, warrant-authorized search
and seizure unless the police can demonstrate that they were already
pursuing an independent, lawful means of discovery of the evidence
when the illegal conduct occurred.  See also United States v.
Hernandez-Cano, No. 86-8288 (11th Cir. Jan. 23, 1987), slip op. 1255
(summarizing and distinguishing Satterfield).  But, as the First
Circuit explained in United States v. Silvestri, 787 F.2d at 745-746,
the inflexible requirement suggested in Cherry and Satterfield stems
from concerns about whether discovery was truly inevitable -- concerns
justified by the facts of Cherry, in which the police never obtained a
warrant, and Satterfield, in which all indications were that the
warrant was obtained as an afterthought in an attempt to validate the
preceding warrantless search and seizure.  In the present case, by
contrast, the district court found as a matter of fact that the agents
made nothing but a brief security sweep of the warehouse and then
secured and guarded the premises from the outside while awaiting a
warrant (Pet. App. 42a).  There is no reason in this case, as there
was in Cherry and Satterfield, to doubt the inevitability that the
agents would obtain a warrant.  It remains to be seen whether the
Cherry and Satterfield courts would apply the language of those cases
to a case like this one (or like Silvestri), which presents much more
compelling facts for applying the inevitable discovery rule.  Indeed,
the Cherry court reaffirmed rather than overruled a prior case in
which it had upheld the admission of evidence, even though the per se
rule was not met.  759 F.2d at 1205 (citing United States v. Miller,
666 F.2d 991 (5th Cir.), cert. denied, 456 U.S. 964 (1982));  see also
United States v. Fitzharris, 633 F.2d 416 (5th Cir. 1980), cert.
denied, 451 U.S. 988 (1981).  In a context other than warrantless
searches, the Fifth Circuit has correctly recognized that "whether
(evidence) would inevitably have been found is a question of fact,
pure and simple." Wicker v. McCotter, 798 F.2d 155, 158 (1986).

   /19/ The written opinion of the district court denying the
suppression motions was actually issued two days after its ruling on
the nondispositive motions.  But, as the record clearly shows, the
district court had decided to deny the suppression motions at an
earlier date, and then turned its attention to the nondispositive
motions.  See Pet. App. 54a n.1;  86-1016 Pet. App. 45a.

   /20/ No argument was made in Henderson that any particular event
justified postponing consideration of the motions at issue.  In
particular, there was no argument in Henderson that the trial court
had postponed, or was entitled to postpone, consideration of
nondispositive motions until it had disposed of case-dispositive
motions.  As the court of appeals panel unanimously agreed, "the
Henderson Court did not pass upon that question, as it was never
before it" (Pet. App. 63a).

   /21/ Although there is no other case precisely on point, the courts
have given a flexible construction to the "under advisement" exclusion
when multiple motions are pending.  See, e.g., United States v.
Schuster, 777 F.2d 264, 268 (5th Cir. 1985);  United States v. Latham,
754 F.2d 747, 753 (7th Cir. 1985);  United States v. Tibboel, 753 F.2d
608, 611-612 (7th Cir. 1985).

   /22/ As we have noted, the panel was not divided on the legal issue
raised by the petitions.  The one question on which the panel was
divided -- whether the record was or was not sufficient to support
exclusion of five of the available 30 days for decision of the
nonsuppression motions -- is entirely fact-bound and does not warrant
review by this Court.