JACK F. GARNER, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-896

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eighth Circuit

   Memorandum For The United States In Opposition

   Petitioner contends that the court of appeals erred in reversing an
order suppressing as evidence marijuana plants that were seized from a
garden adjacent to his residence.

   1. Petitioner was indicted by a grand jury sitting in the Eastern
District of Arkansas.  He was charged with manufacturing and
possessing marijuana, in violation of 21 U.S.C. 841.  Before trial,
petitioner moved to suppress as evidence marijuana plants that an
officer had seized from petitioner's garden after the officer
responded to a burglar alarm.  On June 19, 1989, the district court
suppressed the plants as evidence on the ground that while the officer
properly observed the plants, he did not have probable cause to
believe that the plants were marijuana before he plucked a leaf.  The
court therefore found that the seizure could not be justified under
the plain view doctrine, which requires that the incriminating nature
of the object to be seized be immediately apparent.  Pet. App. A1-A5.

   The court of appeals reversed.  Pet. App. B1-B5.  The court held
that the district court had applied an incorrect legal standard in
requiring the officer to be certain that the plants were marijuana
before he plucked a leaf.  The court concluded that it was lawful for
the officer to seize the plants under the plain view doctrine because
he had probable cause to believe that the plants were marijuana.

   2. Petitioner contends (Pet. 1-11) that the officer had only
reasonable suspicion, not probable cause, for seizing the marijuana
plants, and that the court of appeals improperly applied the clearly
erroneous standard in its review of the case.  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 contentions to this
Court, together with any other claims he may have, in a petition for a
writ of certiorari seeking review of a final judgment against him.
Accordingly, review by this Court of the court of appeals' decision
would be premature at this time.  /1/

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

   KENNETH W. STARR

      Solicitor General

   DECEMBER 1990

   /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.