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

   Brief for the United States

                           TABLE OF CONTENTS

   Opinions below
   Jurisdiction
   Question presented
   Statement
   Summary of argument
   Argument:
      Evidence seized pursuant to a valid warrant, which
      would have been sought and issued even if the evidence
      had not been seen during a prior warrantless search,
      should not be suppressed as a sanction for the earlier
      warrantless search
      A. The bales of marijuana were not the fruit of the
         initial entry
         1. Evidence is not a fruit of an unlawful search
            unless there is a causal connection between that
            search and the seizure of the evidence
         2. The fact that evidence is seen during an unlawful
            search does not provide the requisite causal
            connection to make it a fruit of that search
         3. There is no causal connection in this case
            between the warrantless entry and the seizure
            of the bales of marijuana
         4. It is not necessary in this case to abandon
            the causal connection requirement in order to
            deter "confirmatory searches"
      B. The inevitable discovery doctrine also supports
         admission of the bales of marijuana
   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 unreported.  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 (Pet. App. 62a-64a).  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 petitions were granted on
March 9, 1987.  The jurisdiction of this Court rests on 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether evidence seized pursuant to a valid warrant, which
inevitably would have been sought and issued even if the evidence had
not previously been seen during a warrantless search, should be
suppressed as a sanction for the prior warrantless search.

                               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 more than 1000 pounds of marijuana with intent
to distribute it, in violation of 21 U.S.C. 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 affirmed petitioners' convictions.

   1. The evidence developed at the suppression hearing showed that
the FBI learned from three informants that petitioner Murray and his
brother Joseph were involved with others, including co-defendants John
Rooney and Arthur Barrett, in a large-scale marijuana importation and
distribution network.  Consequently, in July 1982 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.  3
Tr. 3-5.

   On April 5, 1983, the agents saw Rooney meet with Barrett in a
restaurant parking lot in South Boston.  The two men then drove to a
house at 15 Sylvester Road in Dorchester, Massachusetts, where Rooney
backed his truck up to the garage.  Rooney and Barrett then drove back
to Boston in Barrett's car.  2 Tr. 19-24;  3 Tr. 26.

   At 11 a.m. the next day, the agents saw Rooney and Barrett sitting
in Barrett's car, which was parked next to Rooney's truck on a street
in South Boston.  Approximately half an hour later, petitioner Murray
was seen backing Rooney's truck into the street.  Rooney stayed behind
in Barrett's car.  At 11:50 a.m., Murray and an unidentified passenger
returned in Rooney's truck and parked it next to Barrett's car.  A few
minutes later, Rooney drove the truck to 15 Sylvester Road, followed
closely by Barrett.  Rooney backed the truck up to the garage at the
end of the driveway as he had done the previous day.  Rooney and
Barrett then positioned a cardboard box and a dresser on either side
of the end of the truck, thereby obstructing any view into the garage.
 At 12:41 p.m., Rooney and Barrett departed from the Sylvester Road
garage in the truck and Barrett's car.  After some evasive driving,
they rendezvoused in a parking lot on Northern Avenue in South Boston.
 2A Tr. 5-10;  3 Tr. 9-18;  8 Tr. 4-6.

   Shortly after 1 p.m., the agents saw petitioners in the restaurant
parking lot where Rooney and Barrett had met the day before.  They
were seen talking with Stephen King, who was driving a red Jeep.  A
few minutes later, petitioners met with Rooney and Barrett at the
Northern Avenue Parking lot.  Murray then drove Rooney's truck, and
Carter drove a green Dodge camper, to a warehouse at 345 D Street in
South Boston.  At 1:45 p.m., the large overhead doors of the warehouse
opened, and both vehicles entered.  The overhead doors were
immediately pulled down and closed.  2A Tr. 12-13;  3 Tr. 18-20;  6
Tr. 4-5 (Powers).

   At 2:05, the overhead doors reopened, and the truck and the green
camper left the warehouse.  Agents who were conducting surveillance
could see two men inside the warehouse.  One man quickly pulled down
the overhead doors.  The other man was crouching in the back of the
warehouse.  The agents also saw a tractor-trailer rig inside the
warehouse with a long dark container on top.  Murray and Carter drove
the two vehicles back to the Northern Avenue parking lot.  Murray then
exchanged a set of keys with Rooney, who entered the truck and drove
it away.  3 Tr. 22;  4 Tr. 30;  6 Tr. 6-9 (Powers).  Moments later,
co-defendant Christopher Moscatiello entered the green camper and
drove it a short distance away, where he waited until Stephen King
arrived in his Jeep.  The Jeep and the camper then headed in tandem
for the Massachusetts Turnpike.  At 2:25, the Jeep and the green
camper were stopped by agents at a toll plaza on the Turnpike, and
King and Moscatiello were arrested.  As one of the agents pulled the
camper to the side of the road, he noticed a burlap-covered bale in
the camper compartment.  He immediately radioed other agents that the
camper had been stopped and that it was apparently loaded with
marijuana.  3 Tr. 24;  4 Tr. 18;  6 Tr. 17, 27 (Powers).

   At 2:30, Rooney was arrested as he backed his truck into the
driveway at 15 Sylvester Road.  One of the agents detected the odor of
marijuana coming from the truck.  Using Rooney's keys, the agent
opened the rear of the truck and found 60 bales of marijuana there.
He broadcast that discovery to the other agents.  8 Tr. 15-21.
Shortly thereafter, Barrett arrived at the Sylvester Road garage,
where he was arrested (id. at 21).

   After the agents who were watching petitioners learned that the
truck and the camper were loaded with bales of marijuana, they
arrested petitioners.  Following petitioner's arrests, an agent was
sent back to the D Street warehouse to conduct surveillance.  When the
agent arrived, he saw a man with work gloves in his back pocket
standing in front of the warehouse.  The man walked to the corner and
looked down to street.  He then returned to his original position.
Shortly thereafter, the man again walked to the corner and looked down
the street.  The man appeared agitated.  The agent conducting
surveillance then drove around the block.  When he returned, the man
was gone.  2A Tr. 21-23;  3 Tr. 25-30;  4 Tr. 36-38;  5 Tr. 21;  6 Tr.
11-12 (Garibotto).

   At 2:40, several agents converged on the warehouse where the truck
and the camper apparently had been loaded.  The agents walked around
the warehouse looking for windows that would give them a view into the
building, but they found none.  They then knocked and announced their
presence several times.  They opened a mail slot and again urged
anyone within to open the door.  No one replied, but the agents could
smell a strong odor from within.  DEA Supervisor Garibotto then forced
open a door with a tire iron.  He and several other agents entered the
warehouse with guns drawn "'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.  During a three- to
five-minute period, the agents looked throughout the warehouse for
persons.  They found none, but they saw in plain view four trucks and
numerous bales that they suspected contained marijuana.  They also saw
an open can of soda sitting next to an unwrapped but uneaten sandwich.
 At the end of the protective sweep, Supervisor Garibotto ordered
everyone to leave the warehouse.  The agents closed the doors of the
warehouse and did not reenter until a warrant was obtained.  3 Tr.
30-34, 47;  5 Tr. 34-36;  6 Tr. 13-17 (Garibotto).

   Following the protective sweep, some agents continued to maintain
surveillance of the warehouse.  Others took petitioners and their
associates to DEA headquarters for processing.  After the processing
was under way, some of the agents began to prepare affidavits in
support of warrants to search the warehouse, the garage at 15
Sylvester Road, and the green camper.  3 Tr. 34;  4 Tr. 47-48;  5 Tr.
36-37.  In their applications for the warrants, the agents did not
mention the warrantless entry into the warehouse, and they did not
make use of any information they had obtained as a result of that
entry.  J.A. 15-23.  A warrant authorizing a search of the warehouse
was issued at 10:40 p.m.  It was immediately executed and resulted in
the seizure of approximately 270 bales of marijuana, each of which had
been marked with tapes bearing numbers.  The agents also seized
notebooks listing customers whose names corresponded with the numbers
on the bales.  J.A. 24-25.

   2. Before trial, petitioners and their co-defendants moved to
suppress the marijuana and other evidence that had been seized from
the D Street warehouse, the Sylvester Road garage, the green camper,
and Rooney's truck.  After making detailed findings of fact (Pet. App.
35a-43a), the district court concluded that the defendants had been
lawfully arrested and the vehicles lawfully seized.  Relying solely on
the information that was known to the agents before their warrantless
entry into the D Street warehouse, the court also found that the
warrants authorizing the searches of the warehouse, the garage, and
the camper were supported by probable cause (id. at 43a-47a).  With
respect to the D Street warehouse, the court refused to invalidate the
warrant simply because the agents had not informed the magistrate
about the warrantless security sweep.  As the court explained, "(t)he
omission of information regarding the earlier entry into the warehouse
from the warrant affidavit was not a false statement, and it did
nothing to 'enhance the contents of the affidavit,' * * * or to
deceive the magistrate into granting the warrant" (id. at 45a
(citation omitted)).  With respect to petitioners' argument that the
warrantless entry into the warehouse was unlawful and vitiated the
subsequent seizure of the bales pursuant to the search warrant, the
court ruled that, even if the warrantless entry was unlawful, the
warrant was not tainted because it was not issued on the basis of any
information learned by the agents during the protective sweep (id. at
44a).  The court found in any event that none of the defendants had
standing to challenge the search of the warehouse (id. at 48a).

   3. The court of appeals affirmed (Pet. App. 1a-31a).  Contrary to
the holding of the district court, the court of appeals concluded that
petitioners had a reasonable expectation of privacy in the D Street
warehouse and therefore could challenge the seizure of the marijuana
from that location (id. at 22a-23a).  But the court of appeals agreed
with the district court 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 that the agents had seen during that entry had to 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 (Pet. App. 24a).  Assuming arguendo that the
warrantless entry was unlawful, the court reasoned that, even if that
entry had never occurred, the agents would have sought and obtained a
warrant to search the warehouse and inevitably would have discovered
the bales of marijuana.  The court found this "as clear a case as can
be imagined where the discovery of the contraband in plain view was
totally irrelevant to the later securing of a warrant and the
successful search that ensued" and observed that "there was no causal
link whatever between the (assumedly) illegal entry and the discovery
of the challenged evidence" (id. at 28a).  Under the principles of
Segura v. United States, 468 U.S. 796 (1984), and Nix v. Williams, 467
U.S. 431 (1984), the court therefore concluded that there was not a
sufficient nexus between the assumed illegality and the evidence in
question to justify suppression.  /2/

                          SUMMARY OF ARGUMENT

   For present purposes, it can be assumed (although it has not been
adjudicated) that the agents misjudged the exigency for their
warrantless entry into the warehouse and thus violated the Fourth
Amendment.  The question presented is whether that assumed illegality
should lead to the suppression of evidence that was seen during the
warrantless entry but was not seized until later when a valid,
untainted warrant was issued.  Important facts bearing on that
question were adjudicated in the courts below, and petitioners are not
free to substitute for those findings their own version of the facts,
which is in any event contrary to the record.  In particular,
petitioners' contention that the agents in this case would not have
sought a warrant but for what they saw in the warehouse is contrary to
the findings below and is unsupported by the record.  The result
reached by the court of appeals is correct because the decision to
seek a warrant and the issuance of the warrant were both independent
of the information the agents obtained during the warrantless entry.

   A. 1. Before suppressing evidence as a sanction for illegal police
conduct, this Court has always required a nexus between the illegal
conduct and the evidence to be suppressed.  Thus, the Court has never
extended the exclusionary rule so far as to suppress evidence that is
not the "fruit" of a constitutional violation.  Evidence is a "fruit"
only if the constitutional violation was in some sense the but-for
cause of the government's possession of that evidence.  All nine
Justices reaffirmed that proposition in Segura v. United States, 468
U.S. 796 (1984), a case that, like the present case, involved an
assumedly illegal warrantless entry followed by a warrant-authorized
search of the same premises.  The sole basis on which petitioners
attempt to distinguish Segura is that its holding was limited to
evidence that the entering officers did not see for the first time
until the warrant-authorized search, whereas this case involves bales
of marijuana that the agents saw in plain view during the warrantless
entry.

   2. Although the holding of Segura was limited to previously unseen
evidence, the reasoning of that decision applies equally well to
evidence that was previously seen.  What the Court unanimously
determined in Segura was that evidence whose seizure was not causally
connected to any illegality is admissible.  The seizure of the unseen
evidence was no more caused by the illegal entry in this case than the
seizure of the seen evidence.  The seen evidence was not a "primary
fruit" of the warrantless entry, as petitioners contend, because it
was not a "fruit" of that entry at all.  Moreover, petitioners'
proposed rule that the "primary fruit" of a constitutional violation
may never be admitted, even when it has an untainted source
independent of that constitutional violation, has no basis in this
Court's jurisprudence.  An illogical distinction between seen and
unseen evidence cannot be justified merely by invoking the label
"primary fruit."

   3. There was no causal connection between the warrantless entry and
the seizure of the bales of marijuana in this case;  exclusion of the
evidence would therefore be unwarranted under the analysis of both the
majority and the dissenting Justices in Segura.  This is a stronger
case than Segura for admission of the evidence, because there is no
contention in this case that evidence would have been removed from the
warehouse or destroyed (and thus have been unavailable for seizure
pursuant to the warrant) but for the agents' warrantless entry.  The
possibility of removal or destruction of evidence was the only causal
connection that the dissenting Justices in Segura thought might
justify suppression of the evidence in that case.

   4. Petitioners' arguments about "confirmatory searches," in which
the police conduct a warrantless search for the purpose of determining
whether to bother to get a warrant, do not justify a departure from
the "causal connection" requirement in this case.  We assume for
present purposes that evidence seized pursuant to a warrant following
an illegal "confirmatory search" must be suppressed.  That result is
entirely consistent with the traditional requirement of causation, for
the illegal search in those circumstances is a but-for cause of the
issuance of the warrant.  This case does not involve a confirmatory
search.  Nor have petitioners demonstrated any need for a prophylactic
rule that treats all illegal searches that precede the issuance of a
warrant as if they were confirmatory searches.  Rather, the Court
should continue to follow the traditional rule that a defendant should
not be able to escape responsibility for his crime because of a
constitutional violation that is not the cause of his conviction.  The
exclusionary rule is not to be applied as an arbitrary penalty on law
enforcement, attaching to whatever probative evidence may conveniently
be at hand.

   B. The judgment of the court of appeals is also strongly supported
by the "inevitable discovery" doctrine of Nix v. Williams, 467 U.S.
431 (1984).  As the Court explained in Nix, the principle underlying
both the "independent source" and "inevitable discovery" doctrines is
that the police should not be put in a worse position than they would
have occupied if they had complied with the law throughout.  In
addition, the Court noted, the deterrence rationale that provides the
sole justification for the exclusionary rule is not significantly
served when the evidence at issue "ultimately or inevitably would have
been discovered by lawful means" (467 U.S. at 444).

   The force of these principles is not undermined by the factual
differences between Nix and the present case.  Nix did not involve
"primary evidence," but neither does this case.  Nix was a Sixth
Amendment case, but its principles derived from Fourth Amendment
cases;  there is no basis to ignore Nix's principles in the Fourth
Amendment context.  And, although Nix involved a legal "line of
investigation" that was being "actively pursued" before any illegality
occurred, so does this case.  The agents had not begun drafting the
warrant affidavit before the warrantless entry occurred, but their
investigation was leading inexorably toward the obtaining of a
warrant, and the protective sweep did not in any way contribute to the
acquisition of the warrant.

   Finally, Nix demonstrates that petitioners are misguided in their
assertions that suppression of the marijuana is required, regardless
of causation, in order to further the deterrent purposes of the
exclusionary rule.  Nix teaches that "when an officer is aware that
the evidence will inevitably be discovered, he will try to avoid
engaging in any questionable practice" and that for that reason
nonexclusionary remedies, such as departmental discipline and civil
liability, provide a sufficient measure of deterrence (467 U.S. at
445-446).  To the extent that it is "confirmatory searches" that
petitioners wish to deter, internal disciplinary sanctions and the
possibility of civil liability constitute very real threats.  To the
extent that petitioners are also insisting that mistaken judgments
about exigent circumstances (such as the one arguably made in this
case) must be deterred by an exclusionary sanction they have not shown
that an exclusionary sanction will produce any deterrent benefit, let
alone a benefit that outweighs the societal cost of excluding
probative evidence.

                               ARGUMENT

 EVIDENCE SEIZED PURSUANT TO A VALID WARRANT, WHICH WOULD HAVE BEEN
SOUGHT AND ISSUED EVEN IF THE EVIDENCE HAD NOT BEEN SEEN DURING A
PRIOR WARRANTLESS SEARCH, SHOULD NOT BE SUPPRESSED AS A SANCTION FOR
THE EARLIER WARRANTLESS SEARCH

   This case concerns the admissibility of 270 bales of marijuana
observed by agents during a warrantless entry into a warehouse but
seized thereafter pursuant to a valid, untainted warrant.  Although
petitioners argue at length (Br. 19-24) that the initial entry
violated the warrant requirement of the Fourth Amendment, the legality
of that entry is not before the Court.  Neither court below passed on
the question whether the initial intrusion was justified by exigent
circumstances.  Instead, the lower courts refused to suppress the
bales of marijuana because the contraband had been obtained pursuant
to an untainted warrant.  Petitioners do not dispute that the warrant
was issued on probable cause and that the facts establishing probable
cause were known to the agents before the initial entry into the
warehouse.  Nor do petitioners argue that the bales of marijuana were
"seized" before the untainted warrant was executed.  Accordingly,
there is no substantive Fourth Amendment question in this case.  /3/
Instead, the question is solely one of remedy:  Assuming that the
warrantless entry was illegal, should the exclusionary rule be invoked
to suppress the bales of marijuana that were seized pursuant to the
warrant?

   The question presented by this case is framed by the facts found
below.  In light of the factual findings of the lower courts, the
issue to be decided can be characterized as follows:  When officers
conduct an assumedly unlawful protective sweep "'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), and "we can be absolutely certain that the warrantless entry in
no way contributed in the slightest either to the issuance of a
warrant or to the discovery of the evidence during the lawful search
that occurred pursuant to the warrant" (id. at 27a), and "there was no
causal link whatever between the (assumedly) illegal entry and the
discovery of the challenged evidence" (id. at 28a), must the evidence
be suppressed because it was first seen during the warrantless entry?
It is that question that the court of appeals answered in the
negative, and we think properly so.

   An entirely different question would be presented if the facts were
as petitioners claim.  /4/ Indeed, on their version of the facts we
would agree with petitioners that the judgment of the court of appeals
should be reversed.  If it were true that the officers in this case
would not have sought and obtained a warrant but for warrantless
search of the warehouse, then we would agree with petitioners that the
warrant-authorized search does not justify the admission of otherwise
suppressible evidence.  We do not contend, as petitioners claim we do
(Br. 28-32), that the agents' possession of untainted information
amounting to probable cause, without more, makes the subsequent
discovery of that same evidence pursuant to a warrant "independent" or
"inevitable." Rather, we recognize the need for an additional
determination that the agents would have sought the warrant in the
absence of any illegality.  Such a determination has been made in this
case, /5/ and it is supported by the record.

   A. The Bales Of Marijuana Were Not The Fruit Of The Initial Entry

 1. Evidence Is Not a Fruit of an Unlawful Search Unless There Is a
Causal Connection Between That Search and the Seizure of the Evidence

   Typically, the exclusionary rule is invoked to suppress "(e)vidence
obtained as a direct result of an unconstitutional search or seizure."
Segura v. United States, 468 U.S. at 804;  see, e.g., Arizona v.
Hicks, No. 85-1027 (Mar. 3, 1987);  United States v. Chadwick, 433
U.S. 1 (1977);  Chimel v. California, 395 U.S. 752 (1969);  Katz v.
United States, 389 U.S. 347 (1967);  Mapp v. Ohio, 367 U.S. 643
(1961);  Weeks v. United States, 232 U.S. 383 (1914).  In addition,
evidence that is obtained through exploitation of the prior illegality
is sometimes suppressed as the "fruit of the poisonous tree." Wong Sun
v. United States, 371 U.S. 471 (1963).  In order for evidence to be a
"fruit" of the illegality, there must necessarily be a causal
connection between the evidence the government is seeking to introduce
and the illegality.  Put another way, suppression is appropriate only
if "the challenged evidence is in some sense the product of illegal
governmental activity." United States v. Crews, 445 U.S. 463, 471
(1980).  The test for determining whether evidence is the "fruit" of a
prior illegality is whether it was "'come at by exploitation of (the
initial) illegality or instead by means sufficiently distinguishable
to be purged of the primary taint.'" Wong Sun, 371 U.S. at 488
(citation omitted).  This Court has never suppressed evidence in the
absence of a causal connection between the illegal action and the
obtaining of the evidence in question.

   If evidence is obtained pursuant to a valid search warrant, which
is sought and issued on the basis of probable cause developed before
and independent of an illegal entry, it is admissible at trial under
the "independent source" doctrine because of the absence of a causal
connection between the illegal entry and the seizure of the evidence.
Segura v. United States, supra;  see also Silverthorne Lumber Co. v.
United States, 251 U.S. 385 (1920).  In Segura, as in this case, the
police developed probable cause to believe that evidence would be
found in a certain location and decided to obtain a warrant to search
that location.  After arresting the defendant, the officers conducted
a warrantless "protective sweep" of the premises to ensure that the
evidence was not destroyed while a warrant was sought.  Thereafter, a
search warrant was issued solely on the basis of the information known
to the officers before the warrantless entry.  Pursuant to the warrant
the officers searched the apartment again and seized incriminating
evidence.

   Both the majority and the dissenting Justices in Segura concluded
that the evidence discovered and seized during the warrant-authorized
search should not be suppressed unless the illegal entry was the "but
for" cause of the officers' acquisition of that evidence.  468 U.S. at
815;  id. at 817 (Stevens, J., dissenting) ("I do not believe that the
current record justifies suppression of the challenged evidence * * *
.");  id. at 830 ("causation is a necessary but not a sufficient
condition for exclusion").  The Court was divided, however, over
whether the test of but-for causation was met on the facts of that
case.  The majority determined that the illegal entry contributed
nothing to the showing of probable cause, that the evidence was
lawfully seized pursuant to the warrant, and that the evidence
therefore should not be suppressed.  The Court explained (468 U.S. at
813-814):

         Whether the initial entry was illegal or not is irrelevant to
      the admissibility of the challenged evidence because there was
      an independent source for the warrant under which that evidence
      was seized.  Exclusion of evidence as derivative or "fruit of
      the poisonous tree" is not warranted here because of that
      independent source.

   Applying the test articulated in Wong Sun, the Court found that the
"valid warrant search was a 'means sufficiently distinguishable' to
purge the evidence of any 'taint' arising from the entry" (468 U.S. at
814 (quoting 371 U.S. at 488)).  To the extent that there was any
causal relationship between the illegal entry and the ultimate
warrant-authorized search, it was simply that the agents, by securing
the apartment, had prevented the defendants from destroying or
removing evidence.  But, the Court held, there is no "'constitutional
right' to destroy evidence," and the exclusionary rule, "which already
exacts an enormous price from society and our system of justice,"
should not be used to "'protect' criminal activity" (468 U.S. at 816).

   In Segura, the Court decided only the question whether evidence
discovered for the first time during the warrant-authorized search
should be suppressed in light of the prior illegal entry.  The Court
left open the question whether evidence first discovered during the
warrantless search should be suppressed, /6/ although six Justices
commented on a possible distinction between seen and unseen evidence.
/7/ In this case, the Court is sqarely confronted with the question
whether 270 bales of marijuana, discovered during the initial entry
but not seized until the later warrant-authorized search, should be
suppressed.

 2. The Fact That Evidence Is Seen During an Unlawful Search Does Not
Provide the Requisite Causal Connection to Make it a Fruit of That
Search

   The reasoning in Segura applies with full force to the present
case, in which the evidence in question was seen during the
warrantless entry.  There is no rational basis for distinguishing
between evidence observed during the illegal entry but seized during
the untainted warrant-authorized search and evidence first observed
during the warrant search.  See Segura, 468 U.S. at 831 (Stevens, J.,
dissenting).  In either case, there is no causal connection between
the illegal entry and the seizure of the evidence -- a connection that
the Court has always deemed necessary (but not sufficient) to invoke
the exclusionary rule.

   In the present case, the fact that the agents saw the bales during
the protective sweep contributed nothing to the ultimate seizure of
the bales.  The warrant was issued on probable cause that had
developed before the initial entry.  It "provided an 'independent'
justification for seizing all the evidence in the (warehouse) -- that
in plain view just as much as the items that were concealed" (Segura,
468 U.S. at 831 (Stevens, J., dissenting)).  Had the protective sweep
never occurred, the contraband would have been seized pursuant to the
warrant in precisely the same way.  Thus, as the four dissenting
Justices concluded in Segura, the warrant removed the taint not only
from the "hidden fruit," but also from the "fruit in plain view"
(ibid. (footnote omitted)).  Accord United States v. Whitehorn, 813
F.2d 646, 649-650 (4th Cir. 1987), petition for cert. pending, No.
86-2013;  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, No.
85-6384 (Mar. 31, 1986);  2 W. LaFave, Search and Seizure Section
6.5(c), at 674 n.85 (2d ed. 1987);  4 id. Section 11.4(d), at 413
n.211;  id. Section 11.4(f), at 430-431 & n.266;  see also United
States v. Grandstaff, 813 F.2d 1353, 1355-1357 (9th Cir. 1987).  /8/

   Petitioners seek to justify a distinction between seen and unseen
evidence, and thus to distinguish Segura, by labeling seen evidence as
the "primary" fruit of the illegal entry and arguing that independent
source analysis is applicable only to "secondary" fruit of the entry
-- the evidence that is not seen during the illegal entry -- and not
to the "primary" fruit of the entry.  /9/ But to fashion a meaningful
distinction between seen and unseen evidence, one must do more than
merely attach different labels to the two.  Petitioners have offered
no persuasive explanation of why evidence that is observed during an
unlawful entry should be suppressed, while evidence that does not
happen to fall within the officers' view during their entry should not
be suppressed.  Under petitioners' analysis, a bale of marijuana that
the officers happened to have glanced at during their entry would be
subject to suppression, but an identical bale lying just out of their
sight would not.  Indeed, the logical conclusion of petitioners'
argument would seem to be that, if the bales were piled on top of one
another, only the outer layer of bales would have to be suppressed.
There is no principled justification for such an outcome.  /10/

   In any event, the label "primary fruit" is not appropriately
applied to evidence that is seen but not seized during an illegal
search.  The "primary fruit" of particular misconduct is the evidence
that is directly obtained as a result of that misconduct.  /11/ Thus,
the primary fruit of an illegal search is information that the
officers learn from the search and any tangible evidence that they
seize during the search.  /12/ Those authorities that describe
"primary" fruit as evidence discovered during an illegal search are in
fact referring to evidence that was both discovered and seized without
a warrant.  See, e.g., 4 W. LaFave, Search and Seizure Section 11.4,
at 369-370 (2d ed. 1987) (citing Mapp v. Ohio, 367 U.S. 643 (1961)).
In this case, no evidence was seized during the warrantless entry into
the warehouse, and thus the only fruit of that entry was information
rather than tangible evidence.  During the brief initial entry, the
agents learned that the warehouse contained marijuana.  That
information was the "primary fruit" of the assumed Fourth Amendment
violation.  Accordingly, to the extent that Weeks v. United States,
232 U.S. 383 (1914), requires suppression of "primary fruit," the
exclusionary rule would only prohibit the government from presenting
evidence regarding the protective sweep.  Thus, under conventional
analysis, the bales of marijuana that were seized pursuant to the
valid warrant were not the "primary" fruit of the initial entry simply
because they were "discovered" during the course of the protective
sweep of the warehouse.

   Even if the term "primary fruit" can appropriately be applied to
the marijuana observed in this case, petitioners' argument that the
"primary fruit" of the initial entry must be suppressed is contrary to
well-settled principles of Fourth Amendment law.  The Court long ago
made clear that independent source analysis is applicable to primary
fruit, however it is defined.  In Silverthorne Lumber Co. v. United
States, 251 U.S. 385 (1920), the question presented was the
admissibility of evidence that had been unlawfully seized, not just
seen.  The Court held the evidence inadmissible because the government
had exploited the initial illegality by using information learned
thereby to subpoena that same evidence.  The Court cautioned, however,
that "the facts (illegally) obtained" -- primary fruits of the
illegality under any definition -- do not "become sacred and
inaccessible" (251 U.S. at 392).  "If knowledge of them is gained from
an independent source they may be proved like any others" (ibid.).
Fourth Amendment scholars would be quite surprised to learn that, as
petitioners contend (Br. 10-11, 12-13, 16-19, 27, 35-37), Silverthorne
has effectively been overruled and the independent source doctrine no
longer applies to primary evidence.  See, e.g., 4 W. LaFave, supra,
Section 11.4(f), at 420-424 (discussing situation in which "a second
search is undertaken to acquire precisely the same information which
the authorities obtained under an earlier, illegal search" -- i.e.,
the primary fruit -- and citing with approval several cases in which
admission of the information was upheld).

   Thus, petitioners' attempt to use a label to justify a distinction
between seen and unseen evidence is not sound.  Segura's holding was
limited to unseen evidence, but its logic cannot be so confined.

 3. There Is No Causal Connection in This Case Between the Warrantless
Entry and the Seizure of the Bales of Marijuana

   Petitioners cannot overcome the fact that there was no causal
connection in this case between the discovery of the marijuana during
the protective sweep and its seizure pursuant to the valid, untainted
warrant.  The marijuana introduced at trial was in no sense the
product of the initial entry.  Information learned during that entry
was not used to obtain the warrant and was "rediscovered" when the
agents executed the untainted warrant eight hours later.  /13/ During
the course of the warrant-authorized search, the agents seized the 270
bales of marijuana.  This tangible evidence was untainted by the prior
illegal entry and was admissible under the independent source
doctrine.

   Indeed, if previously seen and previously unseen evidence are to be
treated alike, then the evidence in this case is admissible not only
under the rationale of the Segura majority, but also that of the
dissenters.  The dissenting Justices, unlike the majority, would have
considered as part of the causation inquiry whether the evidence would
have been removed or destroyed in the absence of illegal conduct by
the police (468 U.S. at 834-835 (Stevens, J., dissenting)).  Also
unlike the majority, the dissenters believed that the police had
violated the Fourth Amendment, above and beyond the illegal entry, by
impounding the premises from the inside for 18 to 20 hours while
awaiting the warrant (id. at 820-827).  They would have remanded for a
"specific finding as to whether the Government had demonstrated that
the evidence obtained pursuant to the search warrant would have
remained in the apartment had the agents not illegally entered and
impounded it" (id. at 838).  Had such a finding been made, the
dissenting Justices apparently would have affirmed the convictions
(see id. at 817).

   In the present case, it is quite certain tha the 270 bales of
marijuana would have remained undisturbed if the agents had stayed
outside the warehouse until the warrant arrived.  The protective sweep
of the warehouse lasted only two to five minutes.  After the agents
learned that the warehouse was unoccupied, they left, locked the door,
and continued their surveillance;  they did not reenter until the
warrant was obtained.  Unlike the situation in Segura, we can be
certain that no one inside the warehouse would have destroyed or
removed evidence if the agents had not entered, because there was no
one inside.  /14/ Nor did the agents prevent anyone else from
entering.  /15/ Accordingly, the brief warrantless entry was
irrelevant to the agents' ability to seize the bales of marijuana when
they executed the search warrant.  In no sense was the marijuana the
"fruit" of the initial illegal entry -- primary, derivative, or
otherwise.

 4. It Is Not Necessary in This Case to Abandon the Causal Connection
Requirement in Order to Deter "Confirmatory Searches"

   Because this Court has never suppressed evidence as a sanction for
a constitutional violation that was not the but-for cause of the
government's possession of the evidence, it should be clear that
petitioners are asking for a significant expansion of the exclusionary
rule.  As their justification for urging a departure from the bedrock
principle of causation heretofore applied in all of this Court's
exclusionary rule cases, petitioners claim (Br. 38-46) that such a
departure is necessary to deter so-called "confirmatory searches," in
which officers conduct an initial, unlawful search in order to
determine whether to go to the trouble to get a warrant.  No such
departure is necessary, however.  We assume for present purposes that
evidence seized pursuant to a warrant following an illegal
"confirmatory search" must be suppressed.  If so, it is because the
causation requirement, properly applied, is entirely consistent with
suppression of the evidence obtained pursuant to a warrant that is
issued following a confirmatory search.

   When officers have probable cause, engage in an illegal warrantless
search to confirm that contraband can actually be found on the
premises, and only then get a warrant based on the preexisting
probable cause, the information learned during the warrantless search
is in a very real sense the but-for cause of the warrant-authorized
search even though it is not used in the warrant application.  The
very purpose of any confirmatory search is to obtain information to
use in deciding whether to get a warrant.  In no relevant sense,
therefore, was it inevitable before the confirmatory search that a
warrant would eventually be obtained, nor has the warrant been
obtained independently of the information learned during the
confirmatory search.  The warrant is a "fruit" of the confirmatory
search, not in the usual sense that the showing of probable cause
depended on the information gleaned from the search, but in the sense
that the information from the search influenced the decision to seek a
warrant.  See United States v. Salgado, 807 F.2d at 606 (absence of a
causal connection between warrantless search and later issuance of
warrant is not shown unless officers would have sought a warrant in
the absence of the warrantless search).

   For this reason, the leading "confirmatory search" case on which
petitioners rely (People v. Cook, 22 Cal. 3d 67, 583 P.2d 130, 148
Cal. Rptr. 605 (1978)), may have been correctly decided, but for
reasons that do not justify abandoning causation as a prerequisite for
applying the exclusionary rule.  The Cook court did not purport to
hold that all cases involving illegal warrantless searches followed by
warrant-authorized searches must be presumed to be "confirmatory
search" cases and must result in suppression.  Rather, it held that
defendants are entitled to try to demonstrate to the trial court that
any given warrantless search was "confirmatory" and, if they so
demonstrate, to obtain suppression of the evidence later seized
pursuant to the warrant (22 Cal. 3d at 99, 583 P.2d at 149, 148 Cal.
Rptr. at 624).  See also 4 W. LaFave, supra, Section 11.4(f), at 425
(footnote omitted) ("Even if it is thought that such strong medicine
is needed to deal with the so-called 'confirmatory search,' conducted
for the precise reason of making sure that it is worth the effort to
obtain a search warrant, some care is needed in determining just when
a prior police search is of that character.");  cf. People v. Steeg,
175 Cal. App. 3d 665, 688, 220 Cal. Rptr. 904, 917-918 (1985)
(accepting the theory that evidence initially discovered during an
illegal warrantless search but seized pursuant to the untainted
warrant may be admitted), review granted, 715 P.2d 564, 224 Cal. Rptr.
605 (1986).  The result in Cook -- attaching different legal
consequences to confirmatory searches than to other kinds of illegal
searches -- is entirely consistent with a "causation" analysis.  /16/

   Petitioners do not benefit from the approach employed in Cook.  In
the present case, the trial court has already made findings of fact
that are inconsistent with the proposition that the warrantless search
was confirmatory in purpose;  rather, the purpose of the initial entry
was to prevent the destruction of evidence (Pet. App. 42a) pending the
acquisition of a warrant.

   Nor should this Court accept petitioners' implicit invitation to
abrogate the causation requirement, to go beyond Cook, and to hold
that all illegal warrantless entries followed by warrant-authorized
searches must be irrebuttably presumed to be confirmatory searches.
That approach would provide a windfall to criminal defendants whose
convictions were in no sense the product of any illegal behavior by
the police.  It cannot be justified as prophylactic measure unless the
Court is willing to join petitioners in the view (see Pet. Br. 40-42)
that police officers will routinely perjure themselves by
misrepresenting their intent at the time of the warrantless entry, and
that trial courts will be incapable of distinguishing perjured denials
of the intent to conduct a confirmatory search from the far more
common situation in which a warrantless search takes place because of
the officers' mistaken judgment about the existence of exigent
circumstances.  There is no basis to depart from settled exclusionary
rule principles requiring causation because of such skepticism about
the probity of officers and the perspicacity of judges.

   The federal appellate court decisions that discuss the issue
presented in this case lend no support to petitioners' suggestion that
agents will routinely perform "confirmatory searches" before obtaining
a warrant unless the exclusionary rule is invoked here.  In most of
the decided cases, the officers initially entered the premises to look
for other persons in order to prevent the destruction of evidence.
See, e.g., Segura v. United States, supra;  United States v. Salgado,
807 F.2d at 609;  United States v. Echegoyen, 799 F.2d 1271, 1278-1279
(9th Cir. 1986) (search for persons and to eliminate a fire hazard);
United States v. Curry, 751 F.2d 442, 447-448 (1984), opinion after
remand, United States v. Silvestri, 787 F.2d 736 (1st Cir. 1986),
petition for cert. pending, No. 86-678;  United States v. Owens, 782
F.2d 146, 151 (10th Cir. 1986);  United States v. Merriweather, 777
F.2d 505, United States v. Satterfield, 743 F.2d 827, 847 (11th Cir.
1984), cert. denied, 471 U.S. 1117 (1985);  United States v. Griffin,
502 F.2d 959, 960 (6th Cir.), cert. denied, 419 U.S. 1050 (1974);  see
also United States v. Whitehorn, 813 F.2d at 649 (bomb sweep).  In
some of these cases, the initial entry was held to be justified by
exigent circumstances.  See, e.g., United States v. Echegoyen, supra;
United States v. Merriweather, supra;  United States v. Satterfield,
supra.  In other cases, the initial intrusion was ruled unlawful.
See, e.g., United States v. Whitehorn, supra;  United States v. Curry,
supra;  United States v. Griffin, supra;  United States v. Segura, 663
F.2d 411, 414-415 (2d Cir. 1981), aff'd, 468 U.S. 796 (1984).  In
still other cases, the reviewing court did not decide whether the
initial entry was justified by exigent circumstances, because the
challenged evidence was nevertheless admissible under either the
inevitable discovery or the independent source exception to the
exclusionary rule.  See, e.g., Segura v. United States, supra;  United
States v. Salgado, supra.  Significantly, however, there is no federal
case that finds that the purpose of the initial entry was to conduct a
"confirmatory search." Accordingly, experience suggests that agents do
not commonly abuse the warrant requirement by conducting warrantless
"confirmatory searches." /17/

   Although we do not believe that agents will routinely conduct
confirmatory searches in the absence of a broad exclusionary rule
sanction that covers this case, we acknowledge that officers do
occasionally misjudge the need to conduct a security sweep.  But
exigent circumstances are so difficult to calculate that is hard to
criticize an officer who, with little time for reflection,
overestimates the threat of destruction of evidence.  Moreover,
preserving evidence until a warrant can be obtained is an important
and wholly legitimate law enforcement objective.  Although officers
should not be encouraged to act impetuously, neither should they be
discouraged from making on-the-spot judgment calls that are essential
to good police work.  In this setting, a policy of dispensing with the
requirement of causation and suppressing all the evidence found in a
warrant-authorized search any time the police have made an initial
unauthorized entry into the premises might induce police officers to
be unduly cautious in finding exigent circumstances.  If that
occurred, the costs of the exclusionary rule would include not only
the suppression of reliable evidence at trial, but the destruction of
critical evidence in the investigative process.  In this area, as
elsewhere in Fourth Amendment jurisprudence, it is a sufficient
deterrent to unlawful searches that the evidence whose acquisition was
caused by the miscalculated exigent entry is suppressed.  No more
deterrence is needed or desirable.

   Even if there were something to petitioners' deterrence theory,
that would not be a sufficient reason to depart from the causation
requirement.  The exclusionary rule was never intended to be a
comprehensive remedy for violations of the Fourth Amendment.
Constitutional violations that produce no useful evidence go
unpunished by the exclusionary rule.  Violations of the constitutional
rights of one person that produce useful evidence only against other
persons likewise go unpunished by the rule -- although expansion of
the exclusionary remedy to punish such violations might have some
marginal deterrent effect.  Alderman v. United States, 394 U.S. 165,
171-176 (1969);  Rakas v. Illinois, 439 U.S. 128, 133-134 (1978);
United States v. Salvucci, 448 U.S. 83, 95 (1980).  Constitutional
violations that produce evidence that would inevitably have been
discovered anyway should not, the Court has unanimously agreed, result
in the exclusion of that evidence.  See Nix v. Williams, 467 U.S. 431,
444 (1984);  id. at 452, 456-457 (Stevens, J., concurring in the
judgment);  id. at 459 (Brennan, J., dissenting).  Although some
criminals may go free because "the constable has blundered,"
defendants who are not affected by the constable's blunder have no
right to argue that they should receive a benefit solely because
letting their crimes go unpunished will deter police misconduct.
"(This Court has) consistently recognized that unbending application
of the exclusionary sanction to enforce ideals of governmental
rectitude would impede unacceptably the truthfinding functions of
judge and jury.  * * * After all, it is the defendant, and not the
constable, who stands trial." United States v. Payner, 447 U.S. 727,
734 (1980).  /18/

 B. The Inevitable Discovery Doctrine Also Supports Admission Of The
Bales Of Marijuana

   The "independent source" doctrine, which was applied in Segura, is
related to a second principle -- the "inevitable discovery" doctrine
-- which was approved by all nine Members of this Court in Nix v.
Williams, 467 U.S. 431, 444 (1984);  id. at 452, 456-457 (Stevens, J.,
concurring in the judgment);  and id. at 459 (Brennan, J.,
dissenting).  The independent source doctrine is the narrower
doctrine, because it applies only to cases in which the evidence
offered at trial was actually obtained from an independent source,
while the inevitable discovery doctrine applies to any evidence that
"would have been discovered as a matter of course if independent
investigations were allowed to proceed" (id. at 459 (Brennan, J.,
dissenting)).  In a case such as this one, where the evidence was
obtained as a result of a warrant-authorized search, the "independent
source" doctrine is directly applicable.  Yet, because the evidence in
this case would have been discovered as a result of the warrant even
if the warrant had for some reason not been executed, the inevitable
discovery doctrine is applicable as well.

   The governing principles of the inevitable discovery doctrine are
found in Nix v. Williams, supra.  In Nix, the defendant was arrested
for the murder of a young girl although her body had not yet been
found.  At the time of the arrest, a countywide search for the body
was under way.  The arresting officers, in a manner that this Court
found to violate the Sixth Amendment, elicited from the defendant a
statement regarding the whereabouts of the body.  Acting on that
statement, the officers recovered the body before the search party
reached the site.  This Court held that the defendant's incriminating
statement revealing the location of the body was properly suppressed
as the fruit of the Sixth Amendment violation.  Nevertheless, even
though the body itself was also a fruit of the Sixth Amendment
violation, the Court held that the evidence regarding the discovery of
the body was admissible at trial because the body would inevitably
have been discovered by the search party.

   Nix announced several important principles.  First, in discussing
the independent source doctrine, the Court wrote:  "The independent
source doctrine teaches us that the interest of society in deterring
unlawful police conduct and the public interest in having juries
receive all probative evidence of a crime are properly balanced by
putting the police in the same, not a worse, position that they would
have been in if no police error or misconduct had occurred." 467 U.S.
at 443 (footnote omitted).  Petitioners' argument flies in the face of
this principle.  As they admit (Br. 27), they argue that "the
government should indeed be put in a worse position than if it had
complied with the Fourth Amendment."

   Turning to the inevitable discovery doctrine, the Court wrote that
the purpose of that doctrine, which is "closely related * * * to the
harmless-error rule of Chapman v. California, 386 U.S. 18, 22 (1967)
(,) * * * is to block setting aside convictions that would have been
obtained without police misconduct" (467 U.S. at 443 n.4).  The Court
also wrote:  "If the prosecution can establish by a preponderance of
the evidence that the information ultimately or inevitably would have
been discovered by unlawful means * * * then the deterrence rationale
has so little basis that the evidence should be received" (id. at 444
(footnote omitted)).  The Court emphasized with respect to the
inevitable discovery doctrine, as with respect to the independent
source doctrine, that the police should not be "put * * * in a worse
position than they would have been in if no unlawful conduct had
transpired" (id. at 445).  Again, petitioners do not and cannot deny
that this reasoning, if applied to their case, would require rejection
of their position.

   Petitioners argue that there are differences between Nix and the
present case that require the Court to depart from the principles set
forth in Nix.  One of their arguments is that Nix involved
"derivative" evidence and should not be extended to "primary" evidence
(Br. 11-12, 13, 27, 37).  That argument requires little discussion,
because -- as we have noted above -- petitioners invoke an inaccurate
label when they claim that this case involves "primary" evidence.
/19/ A second argument -- that Nix has no application when the
antecedent illegality is a violation of the warrant requirement of the
Fourth Amendment (Pet. Br. 18, 26, 27;  see also ACLU Br. 30-33) --
runs counter to the theme of Nix and has no apparent logical basis.
Although the violation in Nix was a Sixth Amendment violation, Nix
derives its reasoning from Fourth Amendment cases.  See 467 U.S. at
442;  see also 4 W. LaFave, supra, Section 11.4(a), at 378 n.49
("(t)he Court * * * made it unmistakably clear that the exception
would be applied * * * if the poisonous tree were an illegal arrest or
search").  While petitioners may argue fervently that violations of
the Fourth Amendment will be deterred if they prevail in this case,
that argument has no more force than the argument made in Nix that
Sixth Amendment violations should have been deterred by putting the
police in a worse position than if the illegality had not occurred.
No Member of the Court in Nix took the view that such a deterrence
argument was sufficient to require suppression of evidence that would
inevitably have been discovered.

   Petitioners press a third distinction between this case and Nix
that is more substantial but, ultimately, is unpersuasive.  They
correctly note that Nix involved two independent lines of
investigation that converged on the same evidence (Pet. Br. 11, 25,
26).  Some lower courts have suggested that the inevitable discovery
principles of Nix should be applied only when a separate investigation
that ultimately would have led to the evidence was already under way
when the illegality occurred.  See United States v. Cherry, 759 F.2d
1196, 1204 (5th Cir. 1985);  United States v. Satterfield, 743 F.2d
827, 845 (11th Cir. 1984), cert. denied, 471 U.S. 1117 (1985);  but
cf. United States v. Carrion, 809 F.2d 1120, 1130 (5th Cir. 1987)
(footnote omitted) (Cherry does not govern when "the plausible
theories of causation * * * are no different from those in Segura").
Petitioners argue that the principles of Nix should not be applied
here because the agents did not begin to prepare the warrant
application until after the protective sweep.  /20/ Petitioners'
argument is flawed in several respects.

   First, as a factual matter, although the agents did not actually
put pen to paper until they returned to the United States Attorney's
office after the protective sweep, the investigation that led to the
warrant was well under way before the initial entry into the
warehouse.  Throughout April 5 and 6, the agents were gathering facts
to establish probable cause.  Their investigation was leading
inexorably to the procurement of a search warrant.  The protective
sweep was but a five-minute delay in a "line of investigation" that
the agents had been "actively pursuing" (Cherry, 759 F.2d at 1204)
long before the entry.  Had that brief detour not been taken, the
search warrant still would have been sought and issued, and the
marijuana would have been found and seized.

   Second, in both Cherry and Satterfield the challenged evidence was
seized without a warrant during the illegal entry.  See also United
States v. Owens, supra.  Accordingly, in those cases the question
whether the evidence would have been discovered pursuant to a warrant
if it had not been seized during the illegal entry required
speculation.  /21/ It was in that context that the Fifth and Eleventh
Circuits felt justified in depriving the factfinder of the opportunity
to determine what would have happened in the absence of the illegality
by, instead, imposing a rule of law that there must have been a lawful
"line of investigation" being actively pursued.  /22/

   This case is different.  There is no doubt that the marijuana would
inevitably have been discovered during a warrant-authorized search,
because the agents intended from the start to get a warrant, did get a
warrant, and seized the evidence pursuant to the warrant.  The "active
pursuit" requirement proposed by petitioners and adopted by the courts
in Cherry and Satterfield has little use when evidence is ultimately
obtained as a product of the untainted warrant rather than, as in
those cases, in the course of the initial search.  The main purpose
served by the "active pursuit" requirement is that it increases the
accuracy of the court's speculation regarding whether the evidence
would inevitably have been discovered.  The requirement that a lawful
"line of investigation" was being "actively pursued" at the time of
the constitutional violation may be helpful when, as in Nix, the
evidence is obtained by virtue of the illegality and the court must
then hypothesize as to whether the evidence would have been obtained
by legal means had there been no police misconduct.  But the "active
pursuit" requirement serves little if any purpose when, as in this
case and Segura, an untainted warrant is obtained and the court can
determine with certainty that the challenged evidence was seized
pursuant to the warrant.  "The fact that a warrant has been obtained
removes speculation as to whether a magistrate would in fact have
issued a warrant on the facts and also ensures * * * that the (F)ourth
(A)mendment has not been totally circumvented." United States v.
Silvestri, 787 F.2d 736, 745 (1st Cir. 1986), petition for cert.
pending, No. 86-678;  accord United States v. Salgado, 807 F.2d at
608-609 (distinguishing cases in which government seizes evidence
without a warrant and then claims that "it would have gotten a warrant
if it had asked for one" from cases in which evidence is first seen in
a warrantless search and then seized pursuant to a warrant).  /23/

   Thus, although there are distinctions between Nix and the present
case, the principles of Nix firmly support the judgment below.  In
this case, as in Nix, the government should not be put in a worse
position than it would have occupied if no unlawful conduct had
transpired.  To put the same point in a slightly different way,
petitioners should not be put in a better position than they would
have been in if no unlawful conduct had transpired.  Petitioners,
whose guilt is beyond dispute, had been arrested at the time of the
warrantless entry into the warehouse, and it was certain at that time
that the agents would obtain a warrant and lawfully seize the
marijuana.  For purposes of analysis, we assume that the agents
violated the Fourth Amendment in the interim before they obtained the
warrant, but Nix teaches that petitioners should not be able to escape
the consequences of their own misdeeds by using the agents' misconduct
to escape from the chain of events that was inexorably leading to
petitioners' conviction.

   Nix contains one other important teaching for this case.  It
categorically refutes the contention -- which is the major thrust of
petitioners' brief -- that the only effective way to deter police
misconduct is to put police in a worse situation than they would have
been in but for the misconduct (467 U.S. at 445-446):

         (W)hen an officer is aware that the evidence will inevitably
      be discovered, he will try to avoid engaging in any questionable
      practice.  In that situation, there will be little to gain from
      taking any dubious "shortcuts" to obtain the evidence.
      Significant disincentives to obtaining 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 (or the more drastic
      measures petitioners propose) might produce.

   Petitioners obviously do not agree with the Court's judgment in Nix
that, in inevitable discovery situations, society can and should make
do with disincentives to illegal police conduct that are less drastic
than the exclusionary rule.  The Court has made that judgment,
however, and it has no less validity in this case than in Nix.
Indeed, the disincentives to illegal behavior that the Court mentioned
in Nix have considerable importance in the case of the two federal
agencies involved here.  The "confirmatory search" that petitioners
predict will become routine is a deliberate breach of the warrant
requirement.  /24/ Every federal agency engaged in law enforcement has
procedures for disciplining those agents who conduct illegal searches
in bad faith.  For instance, in INS v. Lopez-Mendoza, 468 U.S. 1032,
1044 (1984), the Court observed that "INS has its own comprehensive
scheme for deterring Fourth Amendment violations by its officers."
Although this scheme "cannot guarantee that constitutional violations
will not occur, * * * it does reduce the likely deterrent value of the
exclusionary rule" (468 U.S. at 1045).  Accordingly, the Court held
that the deterrent value of suppressing illegally seized evidence in
deportation proceedings "must be measured at the margin" (ibid.).

   Like the INS, the two agencies involved in this case also have
extensive training programs on Fourth Amendment law for their agents.
Both the DEA and the FBI send their agents to the FBI Training
Academy, where they are lectured on search and seizure law.  Both
agencies have established guidelines for conducting arrests, searches,
and seizures.  Those guidelines stress the warrant requirement and
limit the discretion of the agent to act without first seeking
judicial authorization.  They do not permit confirmatory searches.
FBI Manual of Administrative Operations and Procedures, Illegal
Activities para. (2) (May 16, 1980);  DEA Personnel Manual Section
2735.16 (M)(5) (Sept. 13, 1985).  Agents who deliberately flout the
Fourth Amendment are subject to disciplinary action.  FBI Manual of
Administrative Operations and Procedures, supra;  DEA Personnel
Manual, supra, App. 2735A, at 3, Offense #26.  Moreover, agents are
further deterred by the possibility of civil liability.

   Furthermore, as we have noted, this is not a confirmatory search
case, and its proper analysis does not turn on the question whether an
exclusionary sanction is needed for deterrent purposes in such cases.
In this case, the agents entered the warehouse shortly after arresting
petitioners and their associates, in order to prevent the destruction
of evidence.  When Rooney's truck and the camper pulled out of the
warehouse laden with marijuana at 2:05 p.m., the officers were able to
see two men inside the warehouse.  At approximately 2:30 p.m., another
agent conducting surveillance saw a man pacing in front of the
warehouse.  After the agent drove around the block, the man
disappeared.  Accordingly, the agents believed that a brief
warrantless entry into the warehouse to look for persons was justified
by exigent circumstances.  The protective sweep lasted only a few
minutes and was confined to the purpose for which the agents entered.
Neither court below decided the question of whether the facts
established a valid case of exigent circumstances.  But it is
irrelevant, for remedial purposes, whether the agents properly
assessed the degree of the exigency.  Clearly, they believed they were
acting lawfully and did not enter simply to save themselves the
trouble of going to a magistrate in the event that the warehouse was
empty, as petitioners suggest.  Conduct of the sort at issue in this
case is, at worst, based on a simple miscalculation of exigent
circumstances rather than bad faith;  that kind of conduct will not be
deterred by suppressing evidence subsequently obtained pursuant to a
valid warrant.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   ROY T. ENGLERT, JR.

      Assistant to the Solicitor General

   PATTY MERKAMP STEMLER

      Attorney

   JULY 1987

   /1/ "Pet. App." refers to the appendix to the petition in No.
86-995.

   /2/ The court of appeals also rejected a statutory speedy trial
claim raised by petitioners (Pet. App. 4a-10a).  Thereafter,
petitioners filed petitions in this Court raising both a Fourth
Amendment claim and a speedy trial claim (Nos. 85-1105 and 85-1118).
This Court granted the petitions, vacated the judgment below, and
remanded for reconsideration in light of Henderson v. United States,
No. 84-1744 (May 19, 1986).  In its opinion on remand from this Court,
the court of appeals again rejected petitioners' speedy trial claim.
The court of appeals did not reexamine its prior ruling on the Fourth
Amendment question.  Pet. App. 52a-61a.  Petitioners again filed
certiorari petitions raising both the Fourth Amendment and speedy
trial claims (Nos. 86-995 and 86-1016).  This Court granted the
petitions limited to the Fourth Amendment question.

   /3/ As the prevailing party in the court of appeals, we would be
entitled to argue in this Court that the judgment of the court of
appeals is correct on the ground that the warrantless search was
lawful because it was justified by exigent circumstances.  See
Washington v. Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979);  R.
Stern, E. Gressman & S. Shapiro, Supreme Court Practice 382-387 (6th
ed. 1986).  We do not do so, however, because that fact-bound issue is
not of sufficient importance to merit consideration by this Court;
because there is some force to the observation of the court of appeals
(Pet. App. 24a) that this issue should not be resolved in the absence
of factual findings by the district court;  and, of course, because we
believe that the court of appeals was correct in its determination
that the evidence in question should be admitted even if the
warrantless search was unlawful.  We emphasize only that it remains
the government's position (to be litigated on remand in the lower
courts if necessary) that the warrantless search in this case was
unlawful.  This case involves, at worst, a mistaken judgment by law
enforcement officers about the existence of exigent circumstances and
not, as opposing counsel suggest, a blatant violation of the
Constitution.

   /4/ The best that can be said about petitioners' version of the
facts is that some of their assertions, if they had been credited by
the district court, would have sufficient record support not to be set
aside as clearly erroneous.  Other factual assertions by petitioners
lack record support altogether.  For example, petitioners' assertion
that the warrantless entry lasted for more than 10 to 15 minutes (Br.
30-31) is contrary to the record.  The agents consistently testified
that the protective sweep lasted no more than five minutes.  3 Tr. 33
(Agent Kennedy:  2 minutes);  6 Tr. 16, J.A. 77 (Supervisor Garibotto:
 3-5 minutes).  The two agents who arrived while the sweep was in
progress testified that they remained inside for less than a minute.
2 Tr. 24-26;  J.A. 55 (Agent Cleary:  30 seconds);  4 Tr. 46;  5 Tr.
36;  J.A. 68 (Agent Keaney:  less than one minute).  Those two agents
gave no testimony as to when the sweep began.  Once the doors to the
warehouse were closed, no agent entered the premises until the search
warrant issued.  3 Tr. 47.  Consistent with this evidence, the courts
below found that the agents had entered "to determine if anyone was in
the building" (Pet. App. 11a;  accord id. at 42a), that the agents
left after "a brief view of the premises" (id. at 12a, 42a), and that
"the discovery of the contraband in plain view was totally irrelevant
to the later securing of a warrant and the successful search that
ensued" (id. at 28a).

   Furthermore, petitioners' contention (Br. 8;  see also Br. 31) that
the prosecutor admitted that the warrant-authorized search in this
case was based on the prior warrantless search of the warehouse is
incorrect.  When the prosecutor's remarks are placed in context it is
clear that he was telling the district court that the search warrant
was the result of the warrantless searches of the camper and Rooney's
truck -- not the warrantless entry into the warehouse.  See J.A. 47.

   Indeed, there is no support in the record for petitioners'
allegation (Br. 31) that the "idea of getting a warrant arose only
after the agents and the prosecutor had illegally entered the building
and taken their tours of the premises." On the contrary, the agents
testified that they had entered the building to look for any persons
who might be in a position to destroy evidence.  2 Tr. 25;  3 Tr. 30;
J.A. 77-78.  Thus, the agents did not enter the warehouse in order to
determine whether to seek a warrant;  they were trying to preserve the
evidence until the warrant could be obtained.

   /5/ The court of appeals observed that "the discovery of the
contraband in plain view was totally irrelevant to the later securing
of a warrant" (Pet. App. 28a).  To be sure, the district court did not
find in so many words that the agents would have sought a warrant in
the absence of the warrantless entry into the warehouse, but it did
find quite explicitly that the purpose of the warrantless entry was
"'to apprehend any participants who might have remained inside and to
guard against the destruction of possibly crucial evidence'" (id. at
42a).  That finding is utterly inconsistent with any supposition that
the decision to seek a warrant was made during or after the
warrantless entry;  a determination that the purpose of an entry was
the preservation of evidence necessarily presupposes that those
persons making the entry already (at the time of entry) contemplate a
later search for the evidence so preserved.  And, as noted, the court
of appeals certainly had no doubt that the decision to seek a warrant
was entirely independent of the warrantless entry.  Thus, we submit
that the requisite finding that a warrant would have been sought in
the absence of any illegality has been made in this case, and that the
case should be analyzed on that basis.  If the Court disagrees and
concludes that a more explicit finding is necessary, however, it would
be appropriate for the Court to state what factual findings are
essential to a proper resolution of the legal question and remand to
the district court to make those findings.  See Icicle Seafoods, Inc.
v. Worthington, No. 85-195 (Apr. 21, 1986), slip op. 5.

   /6/ "The only issue here is whether drugs and the other items not
observed during the initial entry and first discovered by the agents
the day after the entry, under an admittedly valid search warrant,
should have been suppressed." 468 U.S. at 804.  Petitioners make the
surprising suggestion (Br. 36-37) that, just two paragraphs after
stating that the issue was not before it, the Court nevertheless
resolved the issue by its statement that "(e)vidence obtained as a
direct result of an unconstitutional search or seizure is plainly
subject to exclusion" (468 U.S. at 804).  Petitioners are wrong for at
least two reasons.  First, the quoted sentence, in context, was simply
a shorthand characterization of the Fourth Amendment exclusionary rule
and was obviously not meant to be read as absolute and without
exception.  The statement did not overturn the settled principle that
"independent source" analysis may be applied to evidence obtained as a
direct result of an unconstitutional search or seizure, any more than
it overturned the settled principle that evidence obtained as a direct
result of an unconstitutional search or seizure will be admitted if
the person objecting to its admission lacks "standing." Second,
petitioners fail altogether to come to grips with the fact that
evidence discovered as a direct result of an unconstitutional search
or seizure is not the same as evidence obtained as a direct result of
an unconstitutional search or seizure, which is the kind of evidence
the Court was discussing.  Even if the Court's statement stood for a
proposition as absolute as petitioners suggest, it would apply only to
the latter kind of evidence and not, as petitioners contend, to the
former.

   /7/ The four dissenters explicitly rejected any different treatment
of seen and unseen evidence.  468 U.S. at 831 (Stevens, J.,
dissenting).  Two Justices in the majority observed that a different
result may be required, but that remark simply noted the distinction
that had been drawn by the court of appeals in that case, it did not
purport to decide the admissibility of previously seen evidence, an
issue that was not before the Court.  468 U.S. at 811, 812 (Burger,
C.J., joined by O'Connor, J.).

   /8/ In at least two of the pre-Segura cases from lower courts that
were cited with approval in Segura, 468 U.S. at 814 n.9;  see also id.
at 835-836 n.30 (Stevens, J., dissenting), the courts upheld the
admission pursuant to a warrant-authorized search of evidence that had
first been seen during an illegal warrantless search.  See United
States v. Bosby, 675 F.2d 1174, 1180-1181 (11th Cir. 1982) (contents
of a briefcase had been seen during illegal search);  United States v.
Fitzharris, 633 F.2d 416, 421 (5th Cir. 1980) (marijuana had been seen
during warrantless search of a ranch), cert. denied, 451 U.S. 988
(1981).

   /9/ Petitioners sometimes go even further and label evidence
discovered during an illegal search the "poisonous tree" itself (Br.
13, 27).  But the "poisonous tree," of course, is the Fourth Amendment
violation, not evidence discovered during that violation.  See, e.g.,
United States v. Pimentel, 810 F.2d 366, 368 (2d Cir. 1987)
(correcting similar error in terminology used by district court).
Evidence is or is not the "fruit of the poisonous tree" depending on
whether it "grows" from the constitutional violation or from a more
wholesome source.

   /10/ One could argue that seen evidence should be suppressed
because it is only if the evidence is unseen that a reviewing court
can have complete confidence that the warrant was not sought in order
to seize the evidence that was discovered in the course of the initial
entry.  But that rationale deprecates the ability of district courts
to make accurate determinations as to the reasons that a warrant was
sought.  See pp. 34-35, infra.  In any event, that rationale would not
provide a reliable means of identifying those cases in which the
initial entry provided the incentive to seek the warrant:  Suppression
would be required in many cases in which the issuance of the warrant
obviously was not dependent in any way on the officers' observations
during the initial entry, while suppression would not be ordered in
cases in which the warrant was sought because of the officers'
observations during the initial entry -- for example, where the
officers sought the warrant because of certain evidence they saw
during the initial entry, but where the search disclosed other,
previously unseen evidence, which was then offered in evidence at
trial.

   /11/ For example, in United States v. Crews, 445 U.S. 463 (1980), a
robbery victim identified her assailant after his illegal arrest, and
the Court recognized that the post-arrest identification should be
suppressed.  But the Court refused to suppress the victim's in-court
identification of her assailant as the fruit of the defendant's
illegal arrest.  The Court noted that the victim came forward before
the arrest occurred, and therefore her presence at trial was not
traceable to any Fourth Amendment violation:  "the toxin in this case
was injected only after the evidentiary bud had blossomed;  the fruit
served at trial was not poisoned" (445 U.S. at 472).  As the Court
explained, "(t)he exlusionary rule enjoins the Government from
benefiting from evidence it has unlawfully obtained;  it does not
reach backward to taint information that was in official hands prior
to any illegality" (id. at 475 (emphasis added)).  Accord United
States v. Wade, 388 U.S. 218, 240-242 (1967) (remanding for a
determination of whether the in-court identification had an
"independent source").  The inadmissible "primary fruit" was the
post-arrest identification obtained as as direct result of the illegal
arrest.

   /12/ For example, in United States v. Karo, 468 U.S. 705 (1984),
agents illegally searched a house by monitoring without a warrant a
beeper attached to a container of ether that had been taken into the
house.  Eventually, the agents obtained a search warrant issued on the
basis of other, untainted information authorizing the search of the
house and the seizure of the container of ether.  The Court observed
that the information obtained by monitoring the beeper without a
warrant was inadmissible at trial (468 U.S. at 719).  But the Court
held that the evidence seized pursuant to the valid, untainted warrant
would not be suppressed (id. at 720-721 & n.7).  The inadmissible
"primary fruit" of the illegal search was what the officers learned as
a result of that search.  Information learned and tangible evidence
seized independently were not "fruits" of the illegal search at all.

   /13/ Petitioners criticize (Br. 38) the agents in this case
because, in presenting their search warrant application to the
magistrate, they did not disclose that they had already entered the
warehouse without a warrant.  Petitioners argue that the exclusionary
rule should be invoked to deter such omissions.  But the information
about the prior entry was irrelevant to the task before the magistrate
-- determining whether there was probable cause to search the
warehouse.  The magistrate was simply deciding whether a warrant
should issue.  He was not deciding whether to suppress evidence
because of a prior illegal entry.  The exclusionary rule question did
not arise until an indictment was returned.  Moreover, by eliminating
the information regarding the security sweep from the affidavit, the
agents were able to ensure that the warrant was issued solely on the
basis of probable cause that had developed before the entry.  See,
e.g., Segura, 468 U.S. at 814 ("No information obtained during the
initial entry * * * was * * * used by the agents to secure the
warrant.  It is therefore beyond dispute that the information
possessed by the agents before they entered the apartment constituted
an independent source for the discovery and seizure of the evidence
now challenged.").  Far from "duplicit(ously)" omitting "material"
information from the affidavit (Pet. Br. 42), agents who omit from an
affidavit information learned during an earlier search whose legality
may be open to question show commendable caution in making absolutely
certain that the magistrate's determination is not based on tainted
information.

   /14/ Of course, the fact that it turned out that there was no
actual risk that the evidence would be destroyed does not undercut the
reasonableness of the agents' concern that evidence inside the
warehouse might be subject to destruction, since the agents did not
know, before the protective sweep, that no one was inside the
warehouse at the time.

   /15/ If the agents had prevented anyone from entering, that act
might have been the but-for cause of the preservation of the evidence,
but it would have been causally unrelated to the initial entry and
would not itself have been illegal.  If securing premises (which
necessarily implies stopping persons who wish to enter) is a seizure
at all, it certainly is a reasonable (and therefore constitutional)
seizure when there is probable cause to search the place that is
secured and the securing is limited in duration, as it was in this
case, to the eight hours necessary to secure a warrant.  See Segura,
468 U.S. at 798 (holding of the Court that securing apartment from the
inside pending acquisition of a warrant for 18 to 20 hours did not
violate the Fourth Amendment);  id. at 823-824 & n.15 (Stevens, J.,
dissenting) (arguing that those actions violated the Fourth Amendment
but "assum(ing) impoundment would be permissible even absent exigent
circumstances when it occurs 'from the outside'");  Mincey v. Arizona,
437 U.S. 385, 394 (1978) (noting with approval the practice of placing
police guards outside crime scene in order to preserve evidence).  See
generally 2 W. LaFave, Search and Seizure Section 6.5 (2d ed. 1987).

   /16/ We are not suggesting that otherwise unlawful police behavior
in a case such as this one would be lawful if the warrantless entry
were conducted for a legitimate purpose;  an entry to preserve
evidence can be just as illegal as an entry to confirm the existence
of contraband.  We are, however, saying (as do the authorities dealing
with "confirmatory searches") that the purpose of the entry can be
extremely important in deciding whether the exclusionary rule should
be applied.  Petitioners obviously understand this is to be true as
well, for they labor mightily to try to refute the finding of the
district court (Pet. App. 42a) that the purpose of the entry in this
case was to preserve evidence.

   /17/ The experience in the state systems is similar.  Petitioners
point to one instance of a confirmatory search in California (see
People v. Cook, supra) and the comments of one justice of the Supreme
Court of Colorado (see People v. Barndt, 199 Colo. 51, 60-61, 604 P.2d
1173, 1179 (1980) (Erickson, J., concurring and dissenting);  but cf.
People v. Griffin, 727 P.2d 55 (Colo. 1986) (Erickson, J., for a
unanimous court)).  The existence of two state cases involving
confirmatory searches is hardly compelling evidence that the practice
of conducting confirmatory searches is widespread or that courts
cannot distinguish such searches from entries based on perceived
exigency.

   /18/ See also United States v. Mitchell, 322 U.S. 65, 70-71 (1944)
("Our duty in shaping rules of evidence relates to the propriety of
admitting evidence.  This power is not to be used as an indirect mode
of disciplining misconduct.");  United States v. Salgado, 807 F.2d at
607 ("(T)he exclusionary rule does not require the exclusion of
evidence that would have been obtained lawfully, just in order to
punish a search that did not harm the defendant in any sense relevant
to a criminal proceeding, because the search was not a necessary step
in obtaining evidence used to convict him.  * * * (The illegal entry)
was not a cause, in the legal sense, of his conviction.").

   /19/ In any event, it is hardly clear that the inevitable discovery
doctrine should be limited to derivative evidence.  The independent
source doctrine certainly is not so limited, and at least some courts
and commenters think the inevitable discovery doctrine should not be.
See 4 W. LaFave, supra, Section 11.4(a), at 379-380 (discussing
authorities on the question).

   /20/ Petitioners also allege (Br. 16 n.9, 31) that the agents did
not even intend to get a warrant until they found marijuana in the
warehouse.  As we have noted several times, the findings of the
district court are contrary to that allegation and are supported by
the record.

   /21/ In Satterfield, the agents conducted a full-blown warrantless
search (rather than a protective sweep) during which they found and
seized a gun.  Although a warrant was eventually obtained, it was not
the means by which the evidence was obtained;  indeed, there is not
even any indication in the court's opinion that the warrant was ever
executed.  743 F.2d at 845.  The distinction between the facts of
Satterfield and the facts of this case may matter, contrary to
petitioners' contention (Pet. Br. 38 n.35), because it is far more
difficult on the Satterfield facts than on the facts of this case to
believe that the warrant was anything other than an afterthought
following a deliberate bypass of the warrant requirement.
Petitioners' observation (ibid.) that a full-blown warrantless search
and a brief but unjustified warrantless inspection are both illegal is
correct, but beside the point.  When the initial warrantless search is
legal, no question of independent source or inevitable discovery
arises.  It is only when a court assumes or determines that the first
search was illegal that questions of independence and inevitability
arise.  The scope of the first search has a significant bearing on
those questions.

   /22/ We doubt that such a rule of law is justified, even in the
context in which it was imposed.  The existence of a lawful line of
investigation being actively pursued is a very important fact, but it
is not the only fact, that the trial court should take into account
when it makes the factual determination (see Nix, 467 U.S. at 444 &
n.5) whether evidence would inevitably have been discovered in the
absence of any illegality.  See United States v. Boatwright, No.
85-1361 (9th Cir. July 20, 1987).

   /23/ In both Silvestri and Salgado, the courts upheld the admission
of previously seen evidence on the basis of reasoning similar to that
of this brief.  As an intermediate step in its analysis, the Silvestri
court suggested that evidence seen during a warrantless entry is
"seized" when the officers then secure the premises pending
acquisition of a warrant, whereas evidence that has not been seen is
not "seized." We disagree with that intermediate step, but there is no
need to belabor the point, since, as Judge Posner observed in Salgado,
807 F.2d at 607, the "seizure" question "is semantically intriguing
but is unrelated to the policies that animate and limit the
exclusionary rule."

   /24/ As such, a confirmatory search cannot be undertaken in good
faith and does not give rise to qualified immunity in a civil damages
action under 42 U.S.C. 1983 or Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971).  By contrast, a reasonably mistaken
judgment about the existence of exigent circumstances (which is what
is involved here, if there is any illegality at all) does not subject
law enforcement officials to personal liability in damages.  Anderson
v. Creighton, No. 85-1520 (June 25, 1987).  Thus, in a parallel
context, the Court has recognized the greater need to deter actions
such as confirmatory searches than to deter overzealous entries on the
basis of perceptions of exigency, even though both involve Fourth
Amendment violations.