GIROLAMO VITO PALAZZOLO, PETITIONER V. UNITED STATES OF AMERICA

   No. 87-1935

   In the Supreme Court of the United States

   October Term, 1987

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

   Memorandum for the United States in Opposition

   Petitioner contends that the court of appeals erred in reversing an
order suppressing as evidence recorded telephone conversations that
were seized pursuant to court order.

   1. On April 30, 1984, petitioner was charged together with three
co-defendants in one count of a three-count indictment returned in the
United States District Court for the Eastern District of Michigan.
The indictment charged petitioner with conspirary to distribute
cocaine, in violation of 21 U.S.C. 846.  Two of his co-defendants were
also charged separately with possession with intent to distribute
cocaine, in violation of 21 U.S.C. 841(a)(1).  Before trial,
petitioner and his co-defendants moved to suppress the evidence that
was derived from court-authorized electronic surveillance of various
telephones (Pet. App. A10, A62, A74).

   On September 13, 1985, the district court granted the motion in
part, finding that the affidavit in support of the electronic
surveillance order did not contain probable cause to support the
wiretap of co-defendant Salvatore Evola's telephone and that the
wiretaps of petitioner's telephones were tainted by the Evola Wire
(Pet. App. A10-A44, A62-A74).  The district court also found that the
affidavit for the Evola wiretap did not meet the necessity requirement
of 18 U.S.C. 2518(1)(c), because it failed to show that other
investigative techniques would be unsuccessful (Pet. App. A44-A58).

   The court of appeals reversed, holding that the electronic
surveillance order complied with the requirements of Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2518
(Pet. App. A92-A114).  Relying on the totality of circumstances test
of Illinois v. Gates, 462 U.S. 213 (1983), the court of appeals
concluded that the warrant was supported by probable cause.  The court
also ruled that the affidavit for the warrant contained an adequate
statement of the reasons why resort to electronic surveillance was
necessary.

   2. Petitioner contends (Pet. 13-21) that the court of appeals used
an erroneous standard in finding probable cause.  He claims that an
electronic surveillance order issued under 18 U.S.C. 2518 must satisfy
the standard of Aguilar v. Texas, 378 U.S. 108 (1964), rather than the
test of Illinois v. Gates, supra.  Petitioner also contends (Pet.
21-26) that the affidavit in this case merely used boilerplate
language and therefore failed to fulfill the "necessity" requirement
set forth in 18 U.S.C. 2518(1)(c).

   Whatever the merits of petitioner's contentions, they are not
presently ripe for review by this Court.  The court of appeals'
decision places petitioner in precisely the same position he would
have occupied if the district court had denied his motion to suppress.
 If petitioner is acquitted following a trial on the merits, his
contentions will be moot.  If, on the other hand, petitioner is
convicted and his conviction is affirmed on appeal, he will then be
able to present his current contentions to this Court, together with
any other claims he may have, in a petition for a writ of certiorari
seeking review of the final judgment against him.  Accordingly, review
by this Court of the court of appeals' decision would be premature at
this time.  /1/

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

   CHARLES FRIED

      Solicitor General

   JUNE 1988

   /1/ Because this case is interlocutory, we are not responding on
the merits to the questions presented by the petition.  We will file a
response on the merits if the Court requests.