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, 1986 On Petitions for a Writ of Certiorari to the United States Court of Appeals for the First Circuit Brief for the United States in Opposition TABLE OF CONTENTS Opinions below Jurisdiction Question presented Statement Argument 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 not yet reported. 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. 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 jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether evidence observed but not seized during a warrantless entry into a building should be suppressed if it would inevitably have been discovered during the subsequent search of the building pursuant to a valid search warrant. 2. Whether the court of appeals correctly computed the time excludable under 18 U.S.C. 3161(h)(1)(J) for the disposition of pretrial motions in determining whether the Speedy Trial Act, 18 U.S.C. (& Supp. III) 3161 et seq., was violated. 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 a quantity of marijuana in excess of 1000 pounds with intent to distribute it, in violation of 21 U.S.C. 841 and 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 again affirmed petitioners' convictions. 1. The evidence developed at a suppression hearing and at trial is summarized in the initial opinion of the court of appeals (Pet. App. 10a-12a). The FBI learned from informants that, between early 1982 and March 1983, co-defendant John Rooney, Arthur Barrett, and others were involved in a large-scale marijuana importation and distribution network operating out of a garage in South Boston. Consequently, in July 1982 the 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. On April 5 and 6, 1983, the agents observed petitioners and others engaged in a pattern of activity that included clandestine efforts to load, transport, and deliver material in a white Ford truck, a green camper, and a blue van. During the early afternoon of April 6, the agents stopped the green camper on the Massachusetts Turnpike and arrested the driver, co-defendant Christopher Moscatiello. One of the agents observed burlap-covered bales inside the camper. On examination pursuant to a search warrant, the bales were found to contain marijuana. Other agents followed the white Ford pickup truck driven by Rooney from the time it left the warehouse until it stopped in a driveway at a private residence. The agents arrested Rooney and searched the truck, finding approximately 60 bales of marijuana. While that search was taking place, other agents stopped the blue van and arrested petitioners. Pet. App. 10a-11a. The agents then converged on the warehouse where the vans apparently had been loaded. There, they saw a man pacing back and forth in front of the building; the man appeared to be observing traffic as it passed. After the agents drove around the block, however, the man disappeared. Shortly thereafter, other agents arrived on the scene. They tried to determine whether anyone was inside the building by banging on the door and announcing the presence of law enforcement officers. When those efforts proved unsuccessful, the agents made a warrantless forced entry of the building "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). The agents made a brief walkthrough of the premises, determined that no one was inside, and then departed and guarded the building from the outside. In the course of walking through the building, the agents detected a strong odor of marijuana and observed many burlap-wrapped bales, which they suspected contained marijuana. Id. at 11a-12a. Following their departure, the agents obtained a warrant to search the building. In their application for the warrant, the agents did not mention the warrantless entry and did not make use of any information they had obtained as a result of that entry. Execution of the warrant resulted in the seizure of approximately 500 bales of marijuana, which were each marked with tapes bearing numbers. The agents also seized notebooks listing the customers whose names corresponded with the numbers on the bales. Pet. App. 12a. 2. Before trial, petitioners moved to suppress the marijuana seized from the warehouse. They alleged that the warrantless entry into the warehouse, during which the marijuana bales were seen, was unlawful and vitiated the subsequent seizure of the bales pursuant to the search warrant. The district court denied the motion (Pet. App. 32a-48a), and the court of appeals affirmed (id. at 1a-31a). The court of appeals held 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 observed during that entry must 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 (id. at 24a). /2/ Assuming arguendo that the warrantless entry was unlawful, the court reasoned that, because the bales of marijuana were in plain view, they would inevitably have been discovered as the result of the subsequent lawful warrant search. Under the principles of Segura v. United States, 468 U.S. 796 (1984), and Nix v. Williams, 467 U.S. 431 (1984), the court concluded therefore that there was not a sufficient nexus between the assumed illegality and the evidence in question to justify suppression (Pet. App. 24a-28a). 3.a. Petitioners and other co-defendants were indicted on April 20, 1983. On May 9, 1983, they filed various pretrial motions. Some of the motions sought suppression of the evidence seized; others sought other forms of relief such as severance, election of counts, and specification of the order of the government's proof. On October 17, 1983, the district court completed hearings on the motions to suppress and took them under advisement. The motions for severance and other forms of relief were denied on December 21, 1983; the motions to suppress were denied on December 23, 1983. Trial began one month later, on January 23, 1984. Pet. App. 5a-6a. On the day the trial began, petitioners moved to dismiss the indictment on the ground that the Speedy Trial Act, 18 U.S.C. (& Supp. III) 3161 et seq., had been violated. In connection with the motion, they conceded that 195 days were excludable under the Act; in its subsequent order, the district court noted that an additional eight days were excludable because of the pendency of a government motion to use charts at trial -- a finding that is not challenged by petitioners. These exclusions yielded an uncontested total amount of excludable time of 203 days, which left only five days in excess of the 70-day maximum prescribed by the Act. Pet. App. 4a-9a. b. The district court denied the motion to dismiss (86-1016 Pet. App. 44a-45a). The court noted that under 18 U.S.C. 3161(h)(1)(J) only 30 days of the period between the October 17 suppression hearing and the December 23 ruling could be excluded as attributable to consideration of the suppression motions. The court explained, however, that the other pending motions, some of which concerned the ordering of the presentation of the government's evidence, would have been mooted if a suppression order had been entered; hence, those motions were not taken under advisement until the suppression motions were resolved. Those motions, the court reasoned, were not subject to the 30-day limit of Section 3161(h)(1)(J) for consideration of motions, but were covered by the provisions of Section 3161(h)(1)(F), which excludes "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." Under the latter provision, the trial court concluded that, even though the motion to suppress was under advisement for more than the 30-day period excludable under Section 3161(h)(1)(J), the additional period was not an unreasonable time "given the complexity of the testimony and the difficulty of determining the extent to which subjective judgment * * * should support a finding of probable cause" (86-1016 Pet. App. 45a-46a). Because the rulings on the suppression motions could have been dispositive of the nonsuppression motions, the court stated that "it was reasonable to hold (those latter) motions until I had decided the motion to suppress" (id. at 45a). Consequently, the court held that the full period between the filing of the motions and their disposition, representing 35 additional days not conceded by petitoners, was properly excludable (id. at 46a). c. The court of appeals affirmed this ruling also (Pet. App. 4a-10a). In its initial opinion, the court rejected petitioners' contention (not renewed in this Court) that the 30-day period between October 17, 1983, and November 16, 1983, could not be excluded under Section 3161(h)(1)(J) without a showing that the court was actually considering the motions on each one of those days. Then, addressing the period "through December 23, 1983, during which the * * * (non-suppression) motions were pending," the court held that the time was excludable under Section 3161(h)(1)(F) because it was reasonable for the district court to have withheld decision on those motions. Accordingly, the court of appeals concluded that the total nonexcludable time amounted to only 45 days and that the Speedy Trial Act was not violated. Pet. App. 9a-10a. d. Petitioners sought rehearing, noting that, according to the docket sheet and the district court's own statements, the nonsuppression motions were decided on December 21, 1983, rather than on December 23, 1983, as both the district court and the court of appeals apparently had assumed. Accordingly, they argued that it could not have been necessary for the district court to dispose of the suppression motions before ruling on the others. Therefore, petitioners argued, no portion of the period after the suppression hearing should have been excludable under Section 3161(h)(1)(F). The court of appeals amended its opinion "(f)or purposes of clarification," but otherwise denied the rehearing petition without opinion (Pet. App. 50a-51a). The amended opinion noted that the court was not holding "that more than 30 days can be excluded under section 3161(h)(1)(J) for deciding the suppression motions" or that the entire period following the suppression hearing was excludable. The amended opinion also omitted the conclusion (Pet. App. 51a) that the total nonexcludable time amounted to 45 days and substituted the conclusion that the total nonexcludable time "did not exceed 70 days" and that the Speedy Trial Act was not violated. Ibid. e. Last Term, petitioners filed petitions in this Court claiming both that the 70-day limit of the Speedy Trial Act had been exceeded and that the bales of marijuana seized from the warehouse should have been suppressed (Nos. 85-1105 and 85-1118). On May 27, 1986, this Court granted the petitions, vacated the judgment of the court below, and remanded for further consideration in light of Henderson v. United States, No. 84-1744 (May 19, 1986). /3/ Henderson construed 18 U.S.C. 3161(h)(1)(F), the pretrial motion provision of the Speedy Trial Act. f. On remand, the court of appeals reexamined the speedy trial issue and again affirmed (Pet. App. 52a-61a). The court once again noted that all parties agreed that "the 30 days from October 17 (when the district court completed hearings on the suppression motions) to November 16, 1983, were excludable as being the 30 days provided in (Section 3161(h)(1)(J)) for motions that are 'actually under advisement by the court'" (Pet. App. 53a). The court further observed that, if at least five days following November 16 could be excluded from speedy trial calculations, the 70-day limit of the Act would not be exceeded (ibid.). The court then held that the requisite number of days could be excluded under subsection (J) as time during which the nonsuppression motions were "under advisement." The court reasoned that the nonsuppression motions were not in a position to be taken under advisement until the case-dispositive suppression motions were decided, which occurred sometime in mid-December. Even if the suppression motions should have been decided by November 16, 1983 -- 30 days after the conclusion of the suppression hearing -- the district court was "still entitled to further credit for up to 30 days additional time within which to decide the non-suppression motions, since these latter motions were not ripe for decision -- i.e., were not actually 'under advisement' -- until the underlying suppression motions were resolved." Pet. App. 57a. In reaching this conclusion, the court of appeals relied on this Court's decision in Henderson, which permitted "'an exclusion of 30 days from the time a motion is actually "under advisement" by the court'" (Pet. App. 58a (quoting Henderson, slip op. 8)). "Since, in fact, only five (of those 30) additional days were needed to comply with the Speedy Trial Act," the court of appeals found that the trial was timely (Pet. App. 58a). Judge Coffin dissented (Pet. App. 58a-61a). In his view, only the days following November 16 during which the nonsuppression claims were actually being considered by the district court could be excluded from speedy trial computations under subsection (J). Because the record does not specifically disclose how much time the district court devoted to the nonsuppression motions after deciding the suppression motions, Judge Coffin would have remanded the case for the district court to specify how much time it devoted to those motions. Pet. App. 59a-61a. Judge Coffin did not take issue with the majority opinion in any other respect. g. In a rehearing petition, petitioners charged that the court of appeals had not been faithful to this Court's decision in Henderson. 86-1016 Pet. App. 50a-61a. In an order denying the petition the court of appeals unanimously rejected petitioners' suggestion that this Court in Henderson had passed on the question that they presented (Pet. App. 63a). The court rejected the assertion that Henderson "state(s) that where a judge cannot sensibly decide one motion unless he first resolves another one, that the former, unripe one is 'under advisement' from the time the necessary papers have arrived" (ibid.). In the court's view, Henderson did not squarely address this question, but language in Henderson supported its finding of no speedy trial violation in this case (id. at 63a-64a). ARGUMENT 1. Petitioners contend (86-995 Pet. 10-23) that the bales of marijuana seized from the warehouse pursuant to a lawfully obtained warrant should be suppressed because the investigating agents had seen the bales during a prior, warrantless protective sweep of the warehouse, which, petitioners allege, was not justified by exigent circumstances. Petitioners do not dispute that, at the time of the protective sweep, the agents already had probable cause to obtain a search warrant for the warehouse. Nor do they dispute that the subsequently obtained warrant was issued solely on the basis of information gathered by the agents before the warrantless entry. Indeed, the observation of the bales during the agents' initial entry contributed nothing to the agents' decision to search the warehouse. And, of course, the agents did not "seize" the marijuana until the untainted warrant was obtained." /4/ In these circumstances, both courts below properly refused to suppress the marijuana on the ground that the marijuana would inevitably have been discovered during the course of the warrant search. a. Significantly, petitioners do not dispute that the marijuana would inevitably have been discovered pursuant to the warrant search. But they urge this Court not to apply the inevitable discovery doctrine, adopted in Nix v. Williams, 467 U.S. 431 (1984), to the facts of this case because to do so will encourage agents to disregard the Fourth Amendment by searching first and seeking a warrant later. That prediction, however, is baseless. The inevitable discovery doctrine, like its close cousin the independent source doctrine (see Segura v. United States, 468 U.S. 796 (1984); Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920)), presupposes that some arguably illegal police conduct has occurred. The doctrine does not reward or encourage such misconduct. But it recognizes that, if the prosecution can establish by a preponderance of the evidence "that the information ultimately or inevitably would have been discovered by lawful means * * * then the deterrence rationale has so little basis that the evidence should be received" (Nix v. Williams, 467 U.S. at 440 (footnote omitted)). To suppress evidence in that setting, the Court stated, "would place courts in the position of withholding from juries relevant and undoubted truth that would have been available to police absent any unlawful police activity" (467 U.S. at 445). The inevitable discovery doctrine is designed to avoid "put(ting) the police in a worse position" (ibid.) than if no illegality had occurred, and it applies only in cases where "the police would have obtained (the) evidence if no misconduct had taken place" (id. at 444). As the Court noted in Nix (id. at 445-446), if the discovery of evidence by lawful means is truly "inevitable," so that the doctrine should apply, the police have little to gain by seeking to discover it by unlawful means. Consequently, application of the inevitable discovery doctrine to the facts of this case will not induce the police to search first and obtain a warrant later, as petitioners suggest. b. Contrary to petitioners' claim (86-995 Pet. 10-11), there is no tension between the decision of the court below and this Court's decision in Segura v. United States, supra. Petitioners suggest that the decision below is inconsistent with Segura because the Court there noted (468 U.S. at 804) that "(e)vidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion." /5/ But this statement in Segura is quite unexceptional in its context and has nothing to do with the question presented here. First, the evidence in question here was not obtained as a result of an unconstitutional search; it was obtained by means of a valid search warrant. The question is whether it is significant that the evidence had been observed earlier during an unlawful entry. Moreover, the "inevitable discovery" doctrine does not come into play unless the evidence in question is "'in some sense the product of illegal government activity'" (Nix, 467 U.S. at 444 (quoting, and adding emphasis to, United States v. Crews, 445 U.S. 463, 471 (1980)); the doctrine establishes that such evidence should not be excluded if it would inevitably have been discovered through lawful means. Hence, for petitioners to assert that the marijuana is subject to exclusion under long-established Fourth Amendment principles because it was initially discovered in the course of an illegal search (see 86-995 Pet. 22) is simply to pose the question presented in this case -- whether the bales are nonetheless admissible under the inevitable discovery doctrine -- not to answer it. /6/ c. Petitioners claim that the decision below conflicts with the decisions of numerous courts of appeals and the highest courts of several states. /7/ There is, however, no true conflict between the decision below and a binding decision of any other federal court of appeals or the highest court of any jurisdiction. In the absence of any such conflict, further review is not warranted. (i) The majority of the cases on which petitioners rely predate Nix v. Williams, 467 U.S. 431 (1984). Most of the pre-Nix cases are distinguishable from the present case, but a few, if still adhered to, would not be. /8/ Nix, however, establishes a number of important principles that make it highly questionable whether the courts that decided those cases will adhere to them. /9/ Nix was the first case in which this Court endorsed the "inevitable discovery" exception to the exclusionary rule. /10/ In so doing, Nix "reaffirmed" (86-995 Pet. 16) the law followed in most of the lower courts, but that is not all that Nix did. Nix squarely rejected a rule that would require a showing of police "good faith" in order for the inevitable discovery rule to apply (467 U.S. at 445-446) and thus undermined many of the cases on which petitioners rely. /11/ The Nix majority also indicated that the exclusionary sanction is inappropriate when it "would put the police in a worse position than they would have been in if no unlawful conduct had transpired" (467 U.S. at 445). /12/ The Court explained that in inevitable discovery situations invocation of that sanction is unnecessary as a deterrent to unlawful police behavior (id. at 445-446): when an officer is aware that the evidence will inevitably be discovered, he will try to avoid engaging in ay questionable practice. In that situation, there will be little to gain from taking any dubious "shortcuts" to obtain the 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 might produce. Virtually every pre-Nix case on which petitioners rely, to the extent it is apposite at all, is based on the contrary theory that the exclusionary rule is an appropriate deterrent to unlawful police behavior in inevitable discovery situations, even when it puts police in a worse situation than they would have been in if no unlawful activity had taken place. /13/ Whether any of those decisions survives Nix is an open question. The pre-Nix cases on which petitioners rely therefore do not provide a sufficient basis for this Court to grant certiorari. (ii) Petitioners assert, however, that there is a conflict between the decision below and several post-Nix cases. That claim is incorrect. Indeed, the three circuits that have squarely confronted the question since Nix have uniformly refused to suppress evidence observed during an illegal entry but later seized pursuant to an untainted warrant whose issuance was inevitable. See United States v. Salgado, No. 85-3209 (7th Cir. Dec. 5, 1986); United States v. Silvestri, 787 F.2d 736 (1st Cir. 1986), petition for cert. pending, No. 86-678; United States v. Merriweather, 777 F.2d 503 (9th Cir. 1985), cert. denied, No. 85-6384 (Mar. 31, 1986). Two of the federal cases on which petitioners rely simply do not resolve (or imply any resolution of) questions under the inevitable discovery doctrine or the independent source doctrine. /14/ As petitioners concede, the language that they quote from two post-Nix decisions of state courts of last resort is dictum, /15/ as is the footnote that they quote from United States v. Echegoyen, 799 F.2d 1271, 1280 n.7 (9th Cir. 1986). /16/ In United States v. Owens, 782 F.2d 146 (10th Cir. 1986), the government never obtained a warrant, and the court's decision does not reflect any government argument that discovery pursuant to a warrant was inevitable, let alone any holding on that subject. /17/ Likewise, in United States v. Cherry, 759 F.2d 1196 (5th Cir. 1985), the government never obtained a warrant, and its "inevitable discovery" argument, in stark contrast to this case, was based on the purely hypothetical proposition that the government would inevitably have obtained a warrant if it had not engaged in an illegal warrantless search. Finally, in United States v. Satterfield, 743 F.2d 827 (11th Cir. 1984), cert. denied, 471 U.S. 1117 (1985), unlike this case, the government actually conducted a full-blown warrantless search (rather than a protective sweep) during which it physically seized the evidence in issue. The government subsequently went through the ritual of obtaining a warrant (see 743 F.2d at 845), but even then it appears that the warrant was never executed. /18/ In sum, although petitioners vigorously seek to portray the federal courts of appeals and state courts of last resort as being in disarray on the question presented, they are not. Accordingly, further review of the well-reasoned opinion of the court below on the exclusionary rule issue is unwarranted. 2. The court of appeals correctly found that petitioners' rights under the Speedy Trial Act had not been violated. The Speedy Trial Act requires that trial begin within 70 days of indictment or the defendant's first court appearance, whichever last occurs. 18 U.S.C. 3161(c)(2). That 70-day period, however, is expanded by periods of excludable delay. 18 U.S.C. (& Supp. III) 3161(h)(1)-(9). Section 3161(h)(1)(J) excludes a maximum of 30 days during which a pretrial is "under advisement." In this case, petitioners and their co-defendants filed two groups of motions. The first group consisted of various suppression claims, which, if successful, would have necessitated dismissal of some or all of the charges. The second group can be classified as nondispositive motions -- motions seeking such relief as severance, election of counts, and specification of the order of the government's proof. Petitioners contend that the 30-day "under advisement" period for these nondispositive motions began to run once all the papers on the motions were filed. The courts of appeals disagreed and held that the 30-day period did not begin to run until the district court had decided -- or until it should have decided -- the suppression claims. The court reasoned that, until the suppression claims were decided, the district court did not know whether the case would actually proceed to trial. Accordingly, up to that point the nondispositive motions were not yet ripe. Consequently, it would have been inefficient and imprudent for the district court to have taken the nondispositive motions under advisement until it had decided to deny the suppression claims. /19/ Petitioners point to nothing in the language of the Speedy Trial Act contradicting the court's application of the Act to the facts of this case. Instead, they argue that the decision of the court of appeals conflicts with Henderson v. United States, No. 84-1744 (May 19, 1986). It does not. In Henderson, this Court considered how much time can be excluded for pretrial motions under Section 3161(h)(1)(F), which excludes "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." The Court held that the subsection (F) exclusion cannot extend beyond the point at which the motion is taken "under advisement." Any excludable delay pertaining to the motion from that point forward is governed by subsection (J), the "under advisement" exclusion. Slip op. 7-8. Nothing in the Henderson opinion, however, purports to restrict the date on which a motion must be taken "under advisement." Henderson merely holds that, for motions decided on the papers without a hearing, the subsection (F) exclusion will normally end when all of the papers pertaining to the motion are filed with the court. Slip op. 7. But this construction of subsection (F) does not prevent a court from postponing consideration of a motion until some later event occurs, such as the decision of a case-dispositive motion. /20/ At that point, the 30-day subsection (J) exclusion begins. In short, Henderson establishes the ending point for the subsection (F) exclusion; it does not fix a starting point for the subsection (J) exclusion other than the date on which the court actually takes the motion under advisement, which in this case was not until the suppression motions had been decided. As petitioners must acknowledge, there is at present no conflict among the circuits on this speedy trial issue. /21/ Petitioners nevertheless predict that the issue will arise in most criminal cases. If that prediction is correct, further explication of the issue from the circuits will be forthcoming. If a conflict develops, it may some day warrant resolution. At this time, however, there is no reason to review further the sensible construction accorded to subsection (J) by the court below. /22/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General PATTY MERKAMP STEMLER Attorney FEBRUARY 1987 /1/ "Pet. App." refers to the appendix to the petition filed by petitioner Murray in No. 86-995. "86-1016 Pet. App." refers to the appendix to the petition filed by petitioner Carter. /2/ Petitioners incorrectly state (86-995 Pet. 8) that the court of appeals indicated that there were no exigent circumstances. The court did not resolve the issue. /3/ Justice Stevens voted to deny the petitions. /4/ As petitioners note (86-995 Pet. 14), the First Circuit, after deciding their case, adopted the unique and surprising theory that, when premises are secured, all evidence (and only the evidence) observed during a prior warrantless entry is thereby "seized." United States v. Silvestri, 787 F.2d 736, 739-740 (1986), petition for cert. pending, No. 86-678. Contra, e.g., United States v. Merriweather, 777 F.2d 503, 506 (9th Cir. 1985), cert. denied, No. 85-6384 (Mar. 31, 1986). We disagree with that novel approach, which to our knowledge is supported by no other court of appeals, but whatever its merits it is of no help to petitioners. The sole import of this analysis by the court of appeals was that the court determined that it is the "inevitable discovery" doctrine rather than the cognate "independent source" doctrine that applies to cases involving evidence observed during an illegal prewarrant search (787 F.2d at 740). Since the court of appeals in this case applied the requirement that the lawful discovery of the pertinent evidence be "inevitable," its analysis is consistent with Silvestri. See also United States v. Salgado, No. 85-3209 (7th Cir. Dec. 5, 1986), slip op. 9 (court need not resolve whether observation of evidence followed by securing of premises constitutes "seizure," since "whether there is an interim illegal seizure of evidence is irrelevant to the issue of exclusion, provided there is (as there is here) very great confidence that the evidence would have been obtained for use at trial even if there had not been that seizure"). /5/ The court of appeals quoted this passage from Segura and indicated that "(a)rguably" it "hinted at" a result different from the one that the court ultimately reached (Pet. App. 28a). Petitioners seriously overstate their claim that the court of appeals indicated that it was departing from Segura (86-995 Pet. 8, 10). /6/ The misdirection of petitioners' argument is highlighted by their erroneous reliance on the government's brief in Segura. As petitioners note (86-995 Pet. 11-12 n.10), the government stated that "evidence discovered in the course of an illegal search ordinarily should be excluded." U.S. Br. at 13, Segura v. United States, 468 U.S. 796 (1984). But that general statement is subject to qualification, inter alia, by the inevitable discovery and independent source doctrines. The government explicitly stated in its brief (at 36 n.21) that, if the Court were to adopt the inevitable discovery doctrine in Nix, it would be incorrect to suppress evidence seen during a warrantless security check that would inevitably have been discovered anyway during the later execution of a search warrant. And the Court specifically reserved this issue in Segura (468 U.S. at 802-803 n.4). Thus, petitioners' assertion that their it is supported by the government's brief in Segura, like their assertion that it is supported by the Court's opinion in that case, is faulty because it ignores the inevitable discovery and independent source doctrines, which are at the heart of the question presented here. /7/ Petitioners also claim (86-995 Pet. 18-19 & nn.25-27) that the decision below conflicts with the decisions of intermediate appellate courts in Florida, Idaho, and Maryland. See also id. at 17 n.18 (discussing claimed conflict with decision of intermediate appellate court in Colorado); id. at 16 n.16 (discussing claimed conflict with decision rendered by intermediate appellate court in Alaska, but mistakenly cited as decision of highest court of Alaska). We disagree with that claim, but we do not pause to distinguish these cases, since a conflict between a federal court of appeals and a state court not of last resort would not in any event be a sufficient basis for a grant of certiorari. /8/ Petitioners' best pre-Nix cases are United States v. Segura, 663 F.2d 411, 417 (2d Cir. 1981), opinion after remand, 697 F.2d 300 (1982), aff'd on other grounds, 468 U.S. 796 (1984), and People v. Barndt, 199 Colo. 51, 604 P.2d 1173 (1980) (en banc). If the courts that decided those cases were now to adhere to them, those decisions could fairly be said to be in direct conflict with the decision below. At the other extreme, petitioners claim a conflict with such pre-Nix cases as United States v. Congote, 656 F.2d 971 (5th Cir. 1981), which does not even remotely touch on application of the inevitable discovery or independent source doctrines. Similarly, United States v. Romero, 692 F.2d 699 (10th Cir. 1982), and United States v. Alvarez-Porras, 643 F.2d 54 (2d Cir.), cert. denied, 454 U.S. 839 (1981), on which petitioners rely, uphold the admission of certain evidence under the inevitable discovery doctrine and therefore certainly contain no holding in conflict with the decision below. /9/ This is not to "beg the question presented by this case" (86-995 Pet. 16 n.15); rather, it is to say that the vitality of those decisions is in doubt in the aftermath of Nix, and the question presented may not have to be resolved by this Court if those decisions are reexamined and revised in light of Nix. If any court adheres to a pre-Nix decision that is inconsistent with the decision in the present case -- something that has not happened to date -- this Court will have ample opportunity to resolve the real conflict that will then be presented. /10/ The fact alone is sufficient to eliminate the alleged conflict between the decision below and the pre-Nix law in the Sixth Circuit. The Sixth Circuit decision said to be in conflict with the decision below is United States v. Griffin, 502 F.2d 959, cert. denied, 419 U.S. 1050 (1974), in which the court held that there is no inevitable discovery doctrine at all. 502 F.2d at 961 ("The assertion by police * * * that the discovery was 'inevitable' because they planned to get a search warrant and had sent an officer on such a mission, would as a practical matter be beyond judicial review. Any other view would tend in actual practice to emasculate the search warrant requirement of the Fourth Amendment."); see also United States v. Apker, 705 F.2d 293, 306 (8th Cir. 1983) ("Only the Sixth Circuit has explicitly rejected the inevitable discovery exception. United States v. Griffin * * * ."), cert. denied, 465 U.S. 1005 (1984); State v. Williams, 285 N.W.2d 248, 257-258 (Iowa 1979) (similar description of Griffin), cert. denied, 446 U.S. 921 (1980). /11/ See, e.g., State v. Williams, 285 N.W.2d 248, 258 (Iowa 1979), cert. denied, 446 U.S. 921 (1980); State v. Holler, 459 A.2d 1143, 1147 (N.H. 1983) (dictum) ("good faith on the part of the police is inherent in the inevitable discovery exception"). The language from these cases that petitioners quote (86-995 Pet. 17 n.20, 19 n.28) comes in the context of explication of the "good faith" requirement. See also State v. Hansen, 295 Or. 78, 97, 664 P.2d 1095, 1105-1106 (1983) (en banc) (in case not involving any "inevitable discovery" question, basing suppression on "purpose" of police officers in effecting warrantless entry). When squarely faced with an "inevitable discovery" question, the Supreme Court of Oregon has followed the Nix approach, not the Hansen approach. See State v. Miller, 300 Or. 203, 225-229, 709 P.2d 225, 242-243 (1985), cert. denied, No. 85-6164 (Apr. 28, 1986). /12/ This important clarification of exclusionary rule doctrine, which is utterly inconsistent with petitioners' theory, has been recognized by the lower courts. See, e.g., United States v. Hernandez-Cano, No. 86-8288 (11th Cir. Jan. 23, 1987), slip op. 1254, 1255; Hamilton v. Nix, No. 84-2089 (8th Cir. Jan. 20, 1987) (en banc), slip op. 10; United States v. Salgado, No. 85-3029 (7th Cir. Dec. 5, 1986), slip op. 10. /13/ See, e.g., United States v. Segura, 663 F.2d at 417; People v. Barndt, 199 Colo. at 56, 604 P.2d at 1176; People v. Cook, 22 Cal. 3d 67, 98-99, 583 P.2d 130, 148-149, 148 Cal. Rptr. 605, 623-624 (1978); Commonwealth v. Benoit, 382 Mass. 210, 218-219, 415 N.E.2d 818, 823 (1981). To the extent that courts in these jurisdictions have decided similar issues after Nix, they have looked primarily to Nix rather than to their own pre-Nix cases for guidance. See People v. Steeg, 175 Cal. App. 3d 665, 688, 220 Cal. Rptr. 904, 917-918 (1985) (after Nix, accepting theory that evidence initially discovered by illegal warrantless search may be admitted under inevitable discovery doctrine), review granted, 715 P.2d 564, 224 Cal. Rptr. 605 (1986); Commonwealth v. Frodyma, 393 Mass. 438, 471 N.E.2d 1298 (1984) (following Nix). A lower court in Colorado has rendered a post-Nix decision that, although distinguishable from the decision below, appears to be in some tension both with the decision below and with Nix itself, but the Supreme Court of Colorado granted the State's petition for certiorari on April 7, 1986. People v. Schoondermark, 717 P.2d 504 (Colo. Ct. App. 1985). It would thus be particularly inappropriate for this Court to grant certiorari at this time to review a claimed conflict between the decision below and the interpretation of the Fourth Amendment by the Supreme Court of Colorado. /14/ United States v. Dart, 747 F.2d 263 (4th Cir. 1984) (suppressing evidence seized pursuant to warrant that was based on information gathered in earlier illegal entry); United States v. Williams, 737 F.2d 735, 740 (8th Cir. 1984) (expressly declining to decide whether admission of items seen during initial, warrantless entry was error, because it was harmless error if error at all). /15/ See State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, 171-172 (1986), cert. denied, No. 86-376 (Nov. 3, 1986); State v. Sugar, 100 N.J. 214, 240 n.3, 495 A.2d 90, 104 n.3 (1985). In both cases, the court left open for further proceedings on remand the possibility that the evidence at issue could be admitted under the inevitable discovery doctrine. In addition, the cryptic footnote in Sugar that petitioners cite has not been taken by the New Jersey courts to mean that evidence discovered during an illegal warrantless search cannot be admitted when it would inevitably have been discovered during a later warrant-authorized search. See State v. DeLane, 207 N.J. Super. 45, 51-53, 503 A.2d 903, 905-907 (App. Div. 1986) (upholding admission of evidence seized pursuant to warrant notwithstanding prior warrantless entry). /16/ The Echegoyen court held that no unlawful entry had occurred in that case, so any suggestion about what the court might have done if there had been an unlawful entry is dictum that does not bind any subsequent Ninth Circuit panel. Ninth Circuit panels are, however, bound by the holdings of United States v. Merriweather, supra, and United States v. Andrade, 784 F.2d 1431 (9th Cir. 1986), that evidence may be admitted under the inevitable discovery doctrine despite earlier illegal warrantless searches. Petitioners' reliance (86-995 Pet. 15) on Judge Reinhardt's concurring opinion in Andrade is altogether misplaced, since Judge Reinhardt spoke only for himself and in any event did nothing more than criticize this Court's decisions. /17/ The government's argument in Owens was that a motel maid would have found the evidence and reported it to the police (782 F.2d at 152-153). The court simply rejected, as a factual matter, the government's "highly speculative assumption of 'inevitability'" (id. at 153). Contrary to the position taken by petitioner Murray in his amicus brief in No. 86-678, Silvestri v. United States, at 7, any language in Owens about the need for a preexisting, independent police investigation is not the "holding" of the case. /18/ There is, to be sure, language in Cherry and Satterfield that purports to go far beyond the facts of those cases and set a per se rule that evidence discovered during an unlawful warrantless entry can never be admitted on the basis of a later, warrant-authorized search and seizure unless the police can demonstrate that they were already pursuing an independent, lawful means of discovery of the evidence when the illegal conduct occurred. See also United States v. Hernandez-Cano, No. 86-8288 (11th Cir. Jan. 23, 1987), slip op. 1255 (summarizing and distinguishing Satterfield). But, as the First Circuit explained in United States v. Silvestri, 787 F.2d at 745-746, the inflexible requirement suggested in Cherry and Satterfield stems from concerns about whether discovery was truly inevitable -- concerns justified by the facts of Cherry, in which the police never obtained a warrant, and Satterfield, in which all indications were that the warrant was obtained as an afterthought in an attempt to validate the preceding warrantless search and seizure. In the present case, by contrast, the district court found as a matter of fact that the agents made nothing but a brief security sweep of the warehouse and then secured and guarded the premises from the outside while awaiting a warrant (Pet. App. 42a). There is no reason in this case, as there was in Cherry and Satterfield, to doubt the inevitability that the agents would obtain a warrant. It remains to be seen whether the Cherry and Satterfield courts would apply the language of those cases to a case like this one (or like Silvestri), which presents much more compelling facts for applying the inevitable discovery rule. Indeed, the Cherry court reaffirmed rather than overruled a prior case in which it had upheld the admission of evidence, even though the per se rule was not met. 759 F.2d at 1205 (citing United States v. Miller, 666 F.2d 991 (5th Cir.), cert. denied, 456 U.S. 964 (1982)); see also United States v. Fitzharris, 633 F.2d 416 (5th Cir. 1980), cert. denied, 451 U.S. 988 (1981). In a context other than warrantless searches, the Fifth Circuit has correctly recognized that "whether (evidence) would inevitably have been found is a question of fact, pure and simple." Wicker v. McCotter, 798 F.2d 155, 158 (1986). /19/ The written opinion of the district court denying the suppression motions was actually issued two days after its ruling on the nondispositive motions. But, as the record clearly shows, the district court had decided to deny the suppression motions at an earlier date, and then turned its attention to the nondispositive motions. See Pet. App. 54a n.1; 86-1016 Pet. App. 45a. /20/ No argument was made in Henderson that any particular event justified postponing consideration of the motions at issue. In particular, there was no argument in Henderson that the trial court had postponed, or was entitled to postpone, consideration of nondispositive motions until it had disposed of case-dispositive motions. As the court of appeals panel unanimously agreed, "the Henderson Court did not pass upon that question, as it was never before it" (Pet. App. 63a). /21/ Although there is no other case precisely on point, the courts have given a flexible construction to the "under advisement" exclusion when multiple motions are pending. See, e.g., United States v. Schuster, 777 F.2d 264, 268 (5th Cir. 1985); United States v. Latham, 754 F.2d 747, 753 (7th Cir. 1985); United States v. Tibboel, 753 F.2d 608, 611-612 (7th Cir. 1985). /22/ As we have noted, the panel was not divided on the legal issue raised by the petitions. The one question on which the panel was divided -- whether the record was or was not sufficient to support exclusion of five of the available 30 days for decision of the nonsuppression motions -- is entirely fact-bound and does not warrant review by this Court.