ROBERT WILLIAM ROY, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-2010

   In the Supreme Court of the United States

   October Term, 1988

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

   Memorandum for the United States in Opposition

   Petitioner contends that the court of appeals erred in reversing an
order suppressing evidence that the Coast Guard seized from a vessel
on the high seas.

   1. On August 26, 1987, petitioner was indicted by a federal grand
jury in the Southern District of Florida.  He was charged with
conspiracy to possess with intent to distribute at least 100 kilograms
of marijuana while on board a United States vessel, in violation of 46
U.S.C. App. 1903(j) (Supp. V 1987), and possession with intent to
distribute at least 100 kilograms of marijuana while on board a United
States vessel, in violation of 46 U.S.C. App. 1903(a) (Supp. V 1987).

   The charges against petitioner arose from events that occurred on
August 14, 1987.  On that day, the Coast Guard stopped and boarded a
vessel on the high seas that was owned by petitioner.  The marijuana
that is the subject of the indictment was seized following a second
boarding of the vessel.  The second boarding occurred two and one-half
hours after the first boarding, when Coast Guard officers realized
they had overlooked a compartment on the vessel during the inspection
that was conducted at the time of the first boarding.

   Petitioner filed a motion to suppress the evidence seized during
the second boarding.  He contended that the Coast Guard lacked
probable cause to conduct a second search of a vessel on the high
seas.  The district court granted the motion to suppress.  Pet. App.
36-60.  The court concluded that although the first boarding and
search of the vessel by the Coast Guard was proper as a safety and
document inspection under the authority of 14 U.S.C. 89(a), the second
search was unlawful and violated the Fourth Amendment.

   2. The court of appeals reversed.  Pet. App. 1-35.  The court ruled
that the district court was not clearly erroneous in finding that the
Coast Guard's document and safety inspection under 14 U.S.C. 89(a) was
completed during the first boarding.  The court held, however, that
the Coast Guard had probable cause to conduct the second search, and
that the search therefore did not violate the Fourth Amendment.

   3. Petitioner contends (Pet. 21-31) that the Coast Guard did not
have probable cause to conduct the search.  Whatever the merits of
petitioner's contention, it is not presently 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.  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.
Accordingly, review by this Court of the court of appeals' decision
would be premature at this time.  /*/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   KENNETH W. STARR

      Solicitor General

   JULY 1989

   /*/ 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.