ROBERT DOUGLAS COOK, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-716

   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 Tenth Circuit

   Memorandum For The United States In Opposition

   Petitioner contends that the court of appeals erred in reversing an
order suppressing as evidence cocaine and other items seized from an
apartment pursuant to a search warrant.

   On December 8, 1987, petitioner was indicted by a federal grand
jury sitting in the District of Colorado.  He was charged with
possession of cocaine with intent to distribute it, in violation of 21
U.S.C. 841(a)(1).  Petitioner moved to suppress cocaine and other
items that were seized from his apartment pursuant to a search warrant
issued by a state court judge.  In his motion to suppress, petitioner
claimed that the supporting affidavit did not contain sufficient facts
to justify the issuance of the warrant.  On January 20, 1988, after an
evidentiary hearing, the district court issued an oral order granting
the motion.  The court stated without elaboration that the affidavit
did not establish probable cause for the issuance of a warrant and
that the executing officers could not have relied on the affidavit in
good faith.

   The court of appeals reversed (Pet. App. A1-A5).  The court
concluded that the district court erred in refusing to apply the good
faith exception to the exclusionary rule adopted in United States v.
Leon, 468 U.S. 897 (1984).  In reaching its decision, the court of
appeals assumed but did not hold that the affidavit failed to
establish probable cause.

   Petitioner contends (Pet. 3-5) that the search warrant was based on
a "bare-bones" affidavit that contained insufficient facts to justify
a conclusion that the executing officers' reliance on the warrant was
objectively reasonable.  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.  If petitioner is acquitted following a trial on the merits,
his claim 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 claim to this Court, 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.

   CHARLES FRIED

      Solicitor General

   DECEMBER 1988

   /*/ Because this case is interlocutory, 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.