JOHN WINSTON, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7306

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit

   Memorandum For The United States In Opposition

   Petitioner contends that he was "seized" within the meaning of the
Fourth Amendment when police officers approached him outside a bus
terminal and asked him some questions.

   1. Petitioner was indicted by a grand jury in the District of
Columbia and charged with one count of possessing cocaine base with
intent to distribute it, in violation of 21 U.S.C. 841(a).  He moved
to suppress the evidence seized at the time of his arrest as well as
his post-arrest statements.  /1/

   After conducting an evidentiary hearing, the district court granted
petitioner's motion to suppress.  Pet. App. 14a-25a.  The court held
that police officers may confront and question a person only if they
have reasonable suspicion that criminal activity may be afoot, and
that no "minimal level of suspicion" supported the encounter with
petitioner.  Id. at 21a.  The court further held that the government
had failed to establish that petitioner agreed to the search of his
bag "before he could reasonably conclude that he was no longer free to
leave." Id. at 22a.

   2. The court of appeals reversed.  Pet. App. 1a-13a.  It rejected
the district court's suggestion that the encounter with petitioner had
to be supported by a "minimal level of suspicion." Id. at 9a-10a.  The
court concluded that at no point during petitioner's encounter with
the officers was he "seized" as a matter of law.  Id. at 11a.  Based
on its ruling with respect to the encounter and its analysis of the
other evidence in the case, the court of appeals held that petitioner
validly consented to the search of his bag.  Ibid.

   3. Petitioner contends (Pet. 9-21) that the court of appeals erred
in concluding that petitioner was not "seized" when police officers
approached him and questioned him outside the bus terminal.  Whatever
the merits of petitioner's contention, it is not ripe for review by
this Court.  The court of appeals' decision places petitioner in
precisely the same position he would have occupied if the district
court had denied his motion to suppress the testimony of the witness.
If petitioner is acquitted following a trial on the merits, his
current contention will be moot.  If, on the other hand, petitioner is
convicted and his conviction is affirmed on appeal, he will then be
able to present his current contention, together with any other claims
he may have, in a petition for a writ of certiorari seeking review of
a final judgment against him.

   There is an additional reason to deny review at this juncture.
Petitioner is currently being detained pending trial.  If he is
promptly tried and acquitted, he will of course be released from that
order of detention, avoiding the further delays in his release about
which he is complaining in No. 89-7540.  If he is convicted, he will
be held pursuant to a judgment of conviction, rather than pursuant to
a pretrial detention order, and his complaint about a lengthy pretrial
detention will become moot.  In either case, it is clearly in the
interest of all parties that the trial in this case proceed as
promptly as possible.  Accordingly, review by this Court of the court
of appeals' decision would be premature at this time and should be
postponed, if it turns out to be necessary at all, until after a final
judgment is entered in the case and the court of appeals has had a
chance to review that judgment.  /2/

   JOHN G. ROBERTS, JR.

      Acting Solicitor General /3/

   JUNE 1990

   /1/ Petitioner also moved to revoke a magistrate's order, entered
on February 14, 1989, detaining him pending trial.  Pet. 6-7.  At the
conclusion of the suppression hearing on April 7, 1989, the district
court denied the motion for pretrial release.  Id. at 7.  On March 8,
1990, the court of appeals affirmed the district court's refusal to
set bail and release petitioner.  Id. at 9 n.1.  Petitioner is seeking
review of that decision in a separate proceeding that is now pending
in this Court.  Winston v. United States, petition for cert. pending,
No. 89-7540.

   /2/ Because this case is in an interlocutory posture, we are not
responding on the merits to the question presented by the petition.
We will file a response on the merits if the Court requests.

   /3/ The Solicitor General is disqualified in this case.