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, 1987

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

   Supplemental Memorandum for the United States

   Pursuant to Rule 35.5 of the Rules of this Court, the Solicitor
General, on behalf of the United States, files this supplemental
memorandum in order to bring to the Court's attention the decision in
United States v. Whitehorn, No. 87-1122 (2d Cir. Sept. 29, 1987),
which was not available in time to be included in the government's
brief in chief (filed July 27, 1987).

   This case is before the Court on a writ of certiorari to review the
judgment of the United States Court of Appeals for the First Circuit,
which upheld the admission of certain evidence seen during a
warrantless search of a warehouse, but not seized until DEA and FBI
agents obtained a warrant that would inevitably have been sought and
issued even if the warrantless search had never taken place.  The
First Circuit assumed, without deciding, that the warrantless search
was illegal, but it followed the teachings of Nix v. Williams, 467
U.S. 431 (1984), and Segura v. United States, 468 U.S. 796 (1984), and
admitted the evidence on the ground that the assumedly illegal search
was not the cause of the government's acquisition of the evidence in
question.

   In seeking a writ of certiorari, petitioners relied heavily on a
claim that the decision below conflicted with United States v. Segura,
663 F.2d 411 (2d Cir. 1981), opinion after remand, 697 F.2d 300 (1982)
(Table), aff'd on other grounds, 468 U.S. 769 (1984).  See 86-995 Pet.
13-14, 20;  86-995 Reply Br. 2.  We agreed that there was a conflict
between the decision below and the Second Circuit's Segura which held
(663 F.2d at 417) that evidence seen during an unlawful search must be
suppressed even in circumstances in which evidence present in the
place searched, but not seen during the unlawful search, was
admissible under the independent source doctrine of Silverthorne
Lumber Co. v. United States, 251 U.S. 385 (1920).  See Br. in Opp. 15
n.8.  We suggested, however (id. at 16), that it was "highly
questionable" whether the Second Circuit would follow its earlier
Segura decision after this Court's decision in Nix v. Williams, supra.

   In its recent Whitehorn decision, the Second Circuit has in fact,
on the basis of Nix, "disavow(ed) that portion of (its) decision in
Segura that supports the proposition that evidence illegally
discovered prior to a warranted search must necessarily be suppressed"
(slip op. 5510).  In Whitehorn, as in this case, certain evidence was
seen during an assumedly illegal warrantless search but was not seized
until the acquisition of a search warrant that inevitably would have
been sought and obtained even if the warrantless search had never
taken place.  The Second Circuit rejected the argument that the
observation of the evidence during the illegal search required its
suppression, and it upheld the admission of the evidence.  The Second
Circuit has thus joined the First, Fourth, Seventh, and Ninth Circuits
-- all of the courts of appeals that have decided the issue -- in
deciding that in cases of this type there is no tenable distinction
between evidence first seen during the warrantless search and evidence
first seen during the later, warrant-authorized search.  See United
States v. Whitehorn, 813 F.2d 646, 649-650 (4th Cir. 1987), cert.
denied, No. 86-2013 (Oct. 5, 1987);  United States v. Salgado, 807
F.2d 603, 607 (7th Cir. 1986), petition for cert. pending, No.
86-1386;  United States v. Merriweather, 777 F.2d 503, 506 (9th Cir.
1985), cert. denied, 475 U.S. 1098 (1986);  Pet. App. 27a;  accord
Segura v. United States, 468 U.S. at 831 (Stevens, J., dissenting).

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   NOVEMBER 1987