DELBERT BOWLING, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7735

   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 Sixth Circuit

   Brief For The United States In Opposition

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A1-A16) is reported
at 900 F.2d 926.  The opinion of the district court denying
petitioner's motion for a new trial (Pet. App. B1-B7) is not reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on April 9, 1990.
The petition for a writ of certiorari was filed on June 1, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the district court properly denied petitioner's
post-verdict motion to examine the jurors concerning a juror's comment
that was made during a recess in the trial.

   2. Whether probable cause still existed to conduct a
warrant-authorized search of petitioner's trailer when, while the
warrant was being obtained, a brief consent search of the trailer
failed to turn up any incriminating evidence.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Eastern District of Kentucky, petitioner was convicted of conspiracy
to traffic in marijuana, in violation of 21 U.S.C. 846;  two counts of
production, manufacture, and possession with intent to distribute
marijuana, in violation of 21 U.S.C. 841(a)(1);  and carrying a
firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. 924(c).  He was sentenced to 117 months'
imprisonment, and three years' supervised release.  The court of
appeals affirmed (Pet. App. A1-A16).

   1. The evidence at trial showed that, on August 24, 1988, United
States Forest Service Agents entered the Arnett Fork area of Clay
County, Kentucky, to destroy marijuana located on government property;
 they arrested two individuals who were found near the contraband.
The individuals stated that the plots belonged to petitioner and his
wife.  The agents discovered a path leading from the plots to a
trailer owned by petitioner.  Several agents stationed themselves at
petitioner's trailer while other agents obtained a search warrant for
the trialer.  Pet. App. 2.

   Forest Service Agent Bobby Dees, one of the agents who was waiting
at petitioner's trailer, talked with petitioner and told him that a
warrant was being sought for his trailer.  Petitioner told Dees that
he could search the trailer without a warrant.  Pet. App. A2.  Dees
and Agent Dennis Whitehead entered the trailer and searched each of
the trailer's rooms.  The only room extensively searched was the
bedroom:  the agents not only pulled out drawers, but also searched a
knapsack that was located there.  After searching the bedroom, the
agents went through the living room, and opened some cabinets in the
kitchen and looked in.  The search lasted about 15 minutes.  The
agents found no incriminating evidence.  Pet. App. A3, A13.

   After the consent search ended, petitioner and his wife left the
trailer.  About two hours later, federal and state agents arrived with
a search warrant.  After the agents entered the trailer, Agent Dees
informed them that he had conducted a "preliminary search" of the
trailer.  The agents did not return to the judicial officer to report
that a consent search had been conducted in the trailer.  Rather, they
searched the trailer and seized several incriminating items, including
marijuana, ammunition, plant food, camping items, and two issues of
High Times magazine.  Pursuant to the warrant, the agents also
searched an automobile located behind the trailer and seized a bottle
of marijuana seeds.  Pet. App. A3-A4.  The automobile had not been
previously searched.  Pet. App. A13.

   2. Petitioner filed a pretrial motion to suppress the evidence
seized from his trailer and automobile, on the ground that the consent
search eliminated probable cause to issue a warrant.  The district
court denied the motion.  Relying on United States v. Leon, 468 U.S.
897 (1984), the court held that as long as the officers who obtained
the warrant were unaware at the time of the warrant's issuance that a
prior consent search had taken place, the officers were entitled to
execute the warrant.  In the court's view, the first search had no
bearing on the validity of the second search.  Pet. App. A4.

   At a trial recess following petitioner's testimony, a defense
witness and her spouse who were waiting outside the courtroom
overheard a female juror say either "he's all bullshit" or "it's all
bullshit" to other jurors in the corridors of the courtroom.  One or
more other jurors laughed at her remark.  After the trial, the
witnesses informed petitioner of the incident.  Petitioner filed a
motion for a new trial on the ground that the juror's remark showed
that she had predetermined his guilt and had influenced other jurors.
Pet. App. B1-B2.  Petitioner sought to question the jurors concerning
the remark and its consequences.  The district court held a hearing in
which the non-juror witnesses testified about overhearing the juror's
remark.  However, the court denied petitioner's motion to examine the
jurors and his motion for a new trial, stating that the juror's
comment was ambiguous and could have referred to "something entirely
unrelated to the trial." Pet. App. B4-B5.

   3. The court of appeals affirmed.  The court held first that the
search of petitioner's trailer and automobile pursuant to a search
warrant satisfied the Fourth Amendment.  Pet. App. A9.  The court
ruled that probable cause to search must exist both at the time a
search warrant is issued and when the warrant is executed.  Pet. App.
A9-A10.  It also concluded that if an initial search dissipates the
probable cause that justified the issuance of a warrant, new indicia
of probable cause must exist to repeat a search of the same premises
pursuant to the warrant.  Pet. App. A9.

   The court then held that once the officers who were searching
pursuant to the warrant learned that there had been a prior search of
the trailer, they should have refrained from searching further until a
judicial officer had determined that probable cause continued to
exist.  Pet. App. A11-A12.  However, the court declined to suppress
the evidence because it concluded that if a magistrate had been
apprised of the first search, he would nevertheless have found that
probable cause still existed to perform the second search.  The court
reasoned that the first search was "not overall as intricate as the
search under the warrant" because "it lasted only fifteen minutes" and
the first search did not include a search of the car.  Pet. App. A13.
The court concluded that the first search was not so broad as to
dissipate probable cause or imply bad faith.  Ibid.

   Relying on Tanner v. United States, 483 U.S. 107 (1987), the court
of appeals also affirmed the district court's denial of petitioner's
motion for a new trial and his motion to question the jurors
concerning the disputed remark.  Observing that petitioner failed to
show that the comments "referred specifically to him or if they
related to the trial at all" (Pet. App. A16), the court refused to
disturb the "near universal and firmly established" ban on examining
jurors regarding internal influences on their verdict.  Ibid.

                               ARGUMENT

   1. Petitioner argues (Pet. 6-8) that the district court erred in
denying his post-verdict motion to examine the jury concerning a
juror's remarks made during a recess in the trial.  This fact-bound
issue does not merit further review.

   First, petitioner's allegations were insufficient to establish that
any juror misconduct had taken place.  As both courts below concluded,
the juror's comments did not necessarily refer to petitioner;  the
subject of the statements could have been something or someone
entirely unrelated to the trial.  Under these circumstances, the
district court had no duty to conduct any further investigation into
the incident.  See United States v. Soulard, 730 F.2d 1292, 1305 (9th
Cir. 1984) (refusal of trial judge to allow jurors to testify
regarding alleged misconduct reviewed under abuse of discretion
standard).

   Second, even assuming that the juror's remark referred to trial
matters, the district court properly denied petitioner's post-verdict
motion to examine the jurors concerning it.  Federal Rule of Evidence
606(b) provides that upon an inquiry into a jury's verdict:

      a juror may not testify as to any matter or statement occurring
      during the course of the jury's deliberations or to the effect
      of anything upon that or any other juror's mind or emotions as
      influencing the juror to assent to or dissent from the verdict
      or indictment or concerning the juror's mental processes in
      connection therewith, except that a juror may testify on the
      question whether extraneous prejudicial informatin was
      improperly brought to the jury's attention or whether any
      outside influence was improperly brought to bear upon any juror.

   Fed. R. Evid. 606(b) bars a post-verdict examination of jurors
concerning internal influences that might have affected the verdict.
Such influences are not strictly limited to events that occur in the
jury room after formal deliberations begin, but include alleged juror
misconduct during a trial.  See Tanner v. United States, 483 U.S. 107,
116-128 (1987) (Fed. R. Evid. 606(b) barred post-verdict examination
of jurors concerning allegations of drug and alcohol use among jurors
during trial).  Petitioner does not claim that the juror's comment,
even if it did refer to petitioner had its origin in any extraneous
material or outside influence or, indeed, anything other than the
juror's observations at trial.  Accordingly, petitioner's complaint
relates to an internal influence on the jury's mental processes and
may not be the subject of post-verdict testimony by a juror.  Cf.
United States v. Kimberlin, 805 F.2d 210, 243-244 (7th Cir. 1986),
cert. denied, 483 U.S. 1023 (1987).

   2. Petitioner also contends (Pet. 8-9) that the warrant-authorized
search of his trailer violated the Fourth Amendment because probable
cause had dissipated due to the lack of incriminating evidence found
during the first search.

   The Fourth Amendment requires that a warrant be executed
reasonably.  See Maryland v. Garrison, 480 U.S. 79, 84 (1987);  United
States v. Dalia, 441 U.S. 238, 258 (1979).  A warrant must be executed
promptly, and before probable cause dissipates.  See United States v.
Shegog, 787 F.2d 420, 422 (8th Cir. 1986);  United States v.
Marin-Buitrago, 734 F.2d 889, 894 (2d Cir. 1984);  United States v.
Nepstead, 424 F.2d 269, 271 (9th Cir.), cert. denied, 400 U.S. 848
(1970).  See also Fed. R. Crim. P. 41(c)(1) (ten-day time limit for
executing search warrants).

   On the facts of this case, the court of appeals held that the
first, consensual search was not "so broad as to dissipate probable
cause or imply bad faith" on the part of the officers involved, and
that "even if a neutral magistrate were apprised of the prior
fruitless consent search, probable cause for a second search would
still have existed." Pet. App. A13.  Because the first search lasted
only fifteen minutes, the agents could not have thoroughly examined
every area of the trailer in which drugs could be hidden or concealed.
 Furthermore, since the first search was limited to the trailer and
not the car, the agents' failure to find any incriminating evidence in
the trailer did not suggest that the car was free of incriminating
evidence.  In sum, there was still probable cause to believe that
evidence of drug trafficking was in the trailer when the agents
conducted the second search pursuant to the warrant.

   The court of appeals' fact-bound determination that probable cause
was not dissipated despite the results of the first search is
sufficient to dispose of petitioner's claim.  In Franks v. Delaware,
438 U.S. 154, 171-172 (1978), the Court held that no hearing need be
held into the truth of allegedly false statements in an affidavit on
which a search warrant is based -- and, consequently, the fruits of
the search need not be suppressed -- "if, when material that is the
subject of the alleged falsity or reckless disregard is set to one
side, there remains sufficient content in the warrant affidavit to
support a finding of probable cause." Similarly, if the probable cause
on the basis of which the warrant was issued in this case continued to
exist after the first, consensual search, the materials seized
pursuant to the warrant could be introduced in evidence.

   The result in this case is further supported by the holding of
United States v. Leon, 468 U.S. 897, 922 n.23 (1984), that the
exclusionary rule does not apply to evidence seized even pursuant to
an invalid warrant unless "a reasonably well trained officer would
have known that the search was illegal despite the magistrate's
authorization." The belief of the officers involved in the second
search that it was legal was certainly objectively reasonable, in
light of the fact that they had obtained a warrant and that the facts
on the basis of which the warrant was issued had not changed so
dramatically as to eliminate the probable cause basis for the warrant.
 Indeed, the fact that the warrant issued in this case apparently
remained legally valid, while the warrant in Leon was assumed to be
invalid, compels the conclusion that the result in this case follows a
fortiori from Leon.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   THOMAS E. BOOTH

      Attorney

   JULY 1990