ANDRES SEGURA AND LUZ MARINA COLON, PETITIONERS V UNITED STATES OF
AMERICA

   No. 82-5298

   In the Supreme Court of the United States

   October Term, 1983

   On Writ of Certiorari to the United States Court of Appeals for the
Second Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statement
   Summary of argument
   Argument:
      Evidence discovered and seized while executing an
      untainted search warrant should not be suppressed
      as the product of a Fourth Amendment violation
      because of an antecedent illegal entry
      A. The officers' entry into petitioners' apartment
          to secure the premises was not an illegal seizure
          of all of its contents
      B. The evidence seized under the warrant is not
          suppressible as the fruit of an illegal entry
          1. A Fourth Amendment violation requires
              suppression of evidence only when an
              exploitation of the illegality causes the
              discovery of the evidence
          2. The illegal entry did not cause the discovery
              of the evidence in this case
          3. The possibility that the evidence would have
              been destroyed before the warrant issued is
              not a valid basis for suppression
      C. The conduct of the police here provides no basis
          for applying the exclusionary rule to suppress
          evidence that is not the fruit of an illegality
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals on the interlocutory appeal
(J.A. 17-27) is reported at 663 F.2d 411.  The opinion of the court of
appeals affirming the convictions (J.A. 30-32) is unreported.  The
opinion of the district court (J.A. 3-16) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on June 29, 1982
(J.A. 30).  The petition for a writ of certiorari was filed on August
27, 1982, and was granted on February 22, 1983.  The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether evidence discovered pursuant to a valid, untainted search
warrant should be suppressed because police had improperly entered the
premises before the warrant was issued.

                               STATEMENT

   Following the district court's grant of petitioners' suppression
motion, the United States took an appeal pursuant to 18 U.S.C. 3731.
The court of appeals affirmed in part and reversed in part (J.A.
17-27).  Petitioners were then tried before a jury in the United
States District Court for the Eastern District of New York and were
convicted of distributing, possessing with intent to distribute, and
conspiring to distribute, cocaine, in violation of 21 U.S.C. 841(a)
(1) and 846.  Petitioner Segura was sentenced to concurrent terms of
10 years' imprisonment on each count,followed by concurrent 15-year
special parole terms on each of the three substantive counts.
Petitioner Colon was sentenced to concurrent sentences of eight years'
imprisonment followed by a special parole term of 15 years on each of
the three substantive counts.  The court of appeals affirmed (J.A.
30-32).

   1. a. The evidence at the suppression hearing showed that in late
January and early February 1981, government agents kept petitioners
under close surveillance after receiving a tip that cocaine sales were
being negotiated at petitioners' apartment.  On January 29, 1981, the
agents saw petitioners meet with a man in a bar.  When the group
departed, the man followed petitioners to their apartment.
Petitioners went inside while the man waited in his car.  Shortly
thereafter, petitioner Segura came outside with a rolled up newspaper
under his arm and entered the man's car.  Two minutes later, Segura
exited the car carrying the newspaper, which was now folded and flat
(H. Tr. 81-92).  On February 8, Segura again briefly visited the same
man.  That same day the agents observed Segura meet with a known
narcotics violator (H. Tr. 96-98).

   The following day, the agents observed Segura drive from his
apartment to a motel.  Enrique Rivudalla-Vidal joined Segura in his
car while it was parked outside the motel, and the two men discussed
for about 10 minutes the possibility of Segura selling Rivudalla one
kilogram of cocaine on consignment (H. Tr. 98-100, 150, 342-343).  On
February 12, 1981, Segura called Rivudalla and agreed to provide
Rivudalla with one-half kilogram of cocaine.  Segura arranged to
deliver the cocaine to Rivudalla at 5:00 p.m. at a Burger King (H. Tr.
150, 342-343).  At the appointed hour, petitioners Segura and Colon
drove to the restaurant, subject to police surveillance.  Within a few
minutes, Rivudalla and his fiancee, Esther Parra, also pulled into the
Burger King parking lot.  Segura met Rivudalla at the restaurant door,
and they talked for five or ten minutes.  Colon joined the two men and
then walked to Rivudalla's car carrying a bulky shoulder bag.  She
stayed with Parra in the car for a couple of minutes.  When she left,
Colon closed the zipper on her shoulder bag, which the agents observed
was now noticeably thinner.  Rivudalla and Parra then left the Burger
King (J.A. 4;  H. Tr. 101-120, 594-598).

   Two agents followed Rivudalla and Parra and stopped the couple for
questioning before they entered their apartment.  Upon learning that a
brown paper bag being carried by Parra contained a glassine bag of
white powder (later determined to be cocaine), the agents placed the
couple under arrest.  /1/ Rivudalla agreed to cooperate with the
police after being advised of his constitutional rights (H. Tr.
135-148).  Rivudalla admitted that he had purchased the cocaine from
Segura, and that Colon had delivered the cocaine to Parra at the
Burger King.  Furthermore, Rivudalla informed the agents that he and
Segura had agreed that Segura would call him later that evening to
find out whether he had been able to sell the cocaine (J.A. 18;  H.
Tr. 149-151).

   b. Between 6:30 and 7:00 p.m., the agents obtained authorization
from an Assistant United States Attorney to arrest petitioners but
were advised that a search warrant probably could not be obtained
until the following day.  The attorney also advised the agents to
secure the premises because of the danger that evidence would be
destroyed before the warrant issued (H. Tr. 152-154;  444-445).  The
agents proceeded to petitioners' apartment and listened at the door,
but they heard nothing to indicate that the apartment was occupied.
The agents then commenced surveillance of the apartment.  At first,
they posted themselves at the fire escape at the end of petitioners'
hall.  Later, they moved outside the building (J.A. 10, 18-19;  H. Tr.
363-364, 394-397).

   At approximately 11:15 p.m., the agents observed Segura enter the
building alone, and they arrested him in the lobby of the building.
The agents took Segura upstairs to his apartment, although Segura was
reluctant to go, falsely maintaining that it was not his apartment.
The agents knocked on the door and entered when a woman, later
identified as petitioner Colon, opened the door.  In addition to
Colon, the agents found three other persons seated in the living room.
 /2/ The agents explained that Segura was under arrest and that they
were obtaining a search warrant for the premises.  The agents then
performed a limited security check of the premises to determine
whether any other persons were hiding there.  In the course of the
security check, the agents discovered in plain view on a bedroom desk
a triple beam scale and several jars of lactose, and they also saw
numerous small cellophane bags in a closet, but they left these items
untouched (J.A. 10-11, 19;  H. Tr. 258-259, 364-367, 375-376,
401-406).  Colon subsequently was arrested, /3/ and petitioners and
the other occupants of the apartment were taken to Drug Enforcement
Administration headquarters.  Two agents remained in the apartment to
secure the premises until the search warrant was obtained (J.A. 11,
19;  H. Tr. 156-160, 374-379).

   A search warrant application was presented to a magistrate at 5:00
p.m. the next day, and a warrant was issued and executed.  /4/ The
agents discovered nearly three pounds (1250 grams) of cocaine in an
attache case, two ounces of cocaine in the pocket of a trench coat, 18
rounds of ammunition for the revolver that had been found in Colon's
purse when she was arrested, over $54,000 in cash, and records of
narcotics transactions.  These items were then seized along with the
other evidence that had first been seen in plain view in the course of
the security check the previous night (J.A. 11, 19-20;  H. Tr.
380-385).

   2. Following a hearing, the district court granted petitioners'
motion to suppress all the evidence seized from the apartment (J.A.
3-16).  The court found that there were no exigent circumstances to
justify the warrantless entry into the apartment and hence that the
original entry and security check of petitioners' apartment was
illegal (J.A. 11-13).  The court concluded that the search warrant
itself was valid because it rested upon a showing of probable cause
arising from information untainted by the illegality (J.A. 13), but,
relying heavily on United States v. Griffin, 502 F.2d 959 (6th Cir.),
cert. denied, 419 U.S. 1050 (1974), the court held that the evidence
seized pursuant to the warrant nonetheless had to be suppressed
because of the illegal entry (J.A. 13-16).  The court concluded that
the evidence would not inevitably have been discovered in the absence
of the illegal entry because petitioner Colon might have destroyed it
before the warrant could be executed (J.A. 15).

   The court of appeals affirmed in part and reversed in part (J.A.
17-27).  The court agreed that the warrantless entry was not justified
by exigent circumstances (J.A. 21-23), but it held that the evidence
discovered pursuant to the valid warrant search was admissible (J.A.
24-26).  The court specifically rejected the district court's
analysis, explaining that the fact that persons were present in the
apartment who might otherwise destroy the evidence was a "prudentially
unsound" basis for suppression because it would penalize the officers
for the correctness of their belief that persons were present who
posed a danger of destruction of the evidence (J.A. 25).  The court
further held, however, that the evidence discovered in plain view in
the course of the initial entry should be suppressed (J.A. 26-27).
The court reasoned that suppression of such evidence would deter
officers from abusing the security check procedure (J.A. 27).
Petitioners were then tried and convicted, and the court of appeals
affirmed their convictions (J.A. 30-32).  /5/

                          SUMMARY OF ARGUMENT

   The question in this case concerns the application of the
exclusionary rule -- should evidence discovered pursuant to a valid
search warrant be suppressed because of an earlier illegal entry?  It
has heretofore been well established that evidence is subject to
suppression only if it is the "fruit" of an illegality, i.e., if it is
discovered through exploitation of the illegality.  Wong Sun v. United
States, 371 U.S. 471, 488 (1963).  The evidence in question here was
not unlawfully seized, nor was the illegal entry or search exploited
in order to discover the evidence.  Because the evidence was derived
from an "independent source," it should not be suppressed.

   A. The evidence in question was not illegally seized when the
officers entered the apartment and secured the premises.  Assuming
arguendo that the officers' action in securing the premises can be
characterized as a "seizure" of the evidence, which they had not yet
discovered, it was not an unreasonable seizure in violation of the
Fourth Amendment.  The officers undisputedly had probable cause to
believe that there was contraband in the apartment.  While probable
cause alone did not give them the authority, in the absence of a
warrant or exigent circumstances, to enter the apartment, which would
entail a limited search, it did entitle them to preserve the status
quo pending the issuance of a warrant by securing or "seizing" the
premises.  Because seizures in a public place involve no invasion of
privacy interests, they generally do not require a warrant (see, e.g.,
Payton v. New York, 445 U.S. 573, 587 (1980);  United States v.
Watson, 423 U.S. 411 (1976));  and this Court has specifically
approved the seizure of a container on the basis of probable cause
pending the issuance of a warrant authorizing its search.  Arkansas v.
Sanders, 442 U.S. 753, 764 n.13 (1979).  By the same token, securing
premises on the basis of probable cause by stationing officers outside
to prevent entry and the removal of its contents until a search
warrant is obtained is not an "unreasonable seizure." See, e.g.,
Mincey v. Arizona, 437 U.S. 385, 394 (1978).  In sum, while the entry
and security check of petitioners' apartment in the absence of exigent
circumstances constituted an illegal search, the officers did not
effect any illegal seizure;  hence, the evidence should be suppressed
only if it was discovered through exploitation of the illegal entry.

   B. Evidence is suppressible as a fruit of the poisonous tree if it
is discovered through exploitation of an illegality, but it clearly
cannot be a fruit if the illegality is not even a "but-for cause" of
the discovery of the evidence.  See United States v. Crews, 445 U.S.
463, 471 (1980).  Here, the discovery of the evidence did not derive
from any information learned during the illegal entry and search.  The
officers did not discover the evidence in question until they executed
the lawful search pursuant to the warrant.  The warrant itself was
based on probable cause known to the officers before the illegal entry
took place, and hence was not tainted by the illegality.  In short,
the discovery of the evidence pursuant to the search warrant
transpired exactly as it would have if the illegal entry had never
occurred, and thus the evidence should not be suppressed as a fruit.

   The only way in which it can be argued that the illegality was a
"but-for cause" of the discovery of the evidence is by speculating
that, if the officers had not entered to secure the premises,
petitioner Colon would have successfully destroyed the evidence before
the warrant was obtained.  This analysis, which was the basis for the
district court's decision, was correctly rejected by the court of
appeals as "prudentially unsound" (J.A. 25).  Suspects have no
constitutional right to destroy evidence -- indeed, it is a criminal
offense to do so (see 18 U.S.C. 2232) -- and the exclusionary rule
should not be invoked to suppress evidence solely on the theory that
improper police action may have prevented an individual from
destroying the evidence during the time a warrant was being procured.

   Moreover, suppression on this basis has elements of logical
self-contradiction.  An illegal entry can be the but-for cause of the
discovery of evidence in this sense only if there were persons present
in the apartment who would have removed or destroyed the evidence
before a warrant was obtained.  But in that case exigent circumstances
would exist that would justify a warrantless entry into the apartment
to prevent the destruction of evidence.  Consequently, there is
considerable tension between the two underpinnings of the district
court's decision -- that exigent circumstances did not justify the
entry and that the entry caused the discovery of the evidence because
it prevented Colon from destroying it before the warrant issued.
Moreover, following the district court's approach would result in a
bizarre anomaly.  The officers would be penalized for being correct in
their assessment of exigent circumstances.  The evidence would be
suppressed when the officers turned out to be correct and the
apartment was in fact occupied by persons who could have destroyed the
evidence;  on the other hand, the evidence would not be suppressed
when the officers mistakenly entered and the apartment was unoccupied,
because in that case the entry could not possibly have aided the
discovery of the evidence by preventing its destruction.

   By the same token, established exclusionary rule principles clearly
demonstrate that the evidence in question here cannot be characterized
as a fruit.  The "connection" between the illegality and the discovery
of the evidence is extremely attenuated, and, indeed, it rests on the
questionable assumption that, if the police had not entered when they
did, Colon would have successfully destroyed all of the evidence
before the warrant was obtained without any of the agents stationed
outside being alerted.  Moreover, the officers' decision, despite
their reasonable view that exigent circumstances existed, not to
conduct any evidentiary search except pursuant to a search warrant
belies any suggestion that they "exploited" the illegality;  hence,
under the principles of Wong Sun, the evidence should not be
suppressed as a fruit.

   C. Petitioners' apparent contention (Br. 35-48) that the
"flagrancy" of the officers' misconduct warrants suppression here
wholly apart from whether the evidence was derived from the misconduct
is both theoretically and factually unsound.  Because of the harsh
consequences of the exclusionary rule, this Court has restricted its
application to those situations where its purposes are best served.
In particular, the Court has determined that evidence should be
suppressed only when it is the fruit of an illegality under the Wong
Sun test.  When the discovery of evidence is causally connected to an
illegality, the "flagrancy" of the constitutional violation is one
important element of the consequent attenuation inquiry.  See Brown v.
Illinois, 422 U.S. 590, 604 (1975).  Even in such cases, however, the
occurrence of misconduct that could be termed "flagrant" does not
completely displace the fruits inquiry, and, a fortiori, it cannot
require suppression of evidence derived from a source wholly
independent of the illegality.

   Nor is suppression necessary here as a general deterrent to
flagrant illegal entries to secure premises in other cases.  As a
practical matter, police officers who are in the process of applying
for a warrant have little incentive to make an immediate entry unless
they genuinely entertain substantial fears that, unless they act, the
evidence will be destroyed before the warrant arrives.  Thus, while
they may sometimes be mistaken in such instances in their judgment
that the circumstances are sufficiently exigent to justify warrantless
entries, such improper entries will generally occur only in close
cases;  there is no investigative benefit to be reaped from a flagrant
violation and hence no incentive for the police to commit one.  On the
other hand, even under the court of appeals' decision, there remain
substantial disincentives to such illegal entries, such as civil
liability and the suppression of evidence discovered other than
pursuant to a warrant.

   In any event, the officers' conduct here cannot be characterized as
flagrant;  indeed, it is open to serious question whether they
committed any Fourth Amendment violation at all, and there can be no
doubt that any mistake they made cannot be deemed egregious.  A
warrantless entry to prevent the destruction of evidence is permitted
if the police have sufficient reason to believe that someone is on the
premises who is likely to destroy the evidence before a warrant is
obtained.  Here, the officers undisputedly had probable cause to
believe that there was contraband in petitioners' apartment.  Because
of the arrests that had occurred, the officers also had reason to fear
that any occupants of the apartment would be alerted that something
was amiss before the warrant issued;  when Segura unexpectedly arrived
after 11:00 p.m. alone, the officers had a strong basis to believe
that Colon was inside the apartment, thereby materially enhancing the
concern that the evidence might be destroyed.  While the court of
appeals disagreed and held that the facts known to the officers did
not give them a sufficient basis to suspect that evidence was in
danger of being destroyed, this is plainly a close question of law,
and the illegality was based solely on a good faith legal misjudgment
by the officers.

   The other actions taken by the officers also belie the accusation
that they acted in bad faith.  They consulted with the United States
Attorney's office before arresting petitioners and secured the
premises on the advice of that office after being informed that a
warrant could not be obtained until the following day.  When they did
enter the premises, they took only those steps necessary to ensure
that evidence would not be destroyed and did not conduct an
evidentiary search until the warrant was obtained.  In sum, the
officers' conduct here provides no basis for departing from the black
letter principle that the exclusionary rule should not be applied to
suppress evidence that is not obtained by exploitation of a violation
of a defendant's rights.

                               ARGUMENT

 EVIDENCE DISCOVERED AND SEIZED WHILE EXECUTING AN UNTAINTED SEARCH
WARRANT SHOULD NOT BE SUPPRESSED AS THE PRODUCT OF A FOURTH AMENDMENT
VIOLATION BECAUSE OF AN ANTECEDENT ILLEGAL ENTRY

   This case concerns the admissibility of evidence discovered and
seized in a search of an apartment conducted pursuant to a valid,
untainted warrant.  It presents a question concerning the proper
application of the exclusionary rule -- should such evidence be
suppressed because, before the warrant was obtained, police officers
illegally entered the apartment and secured the premises?  /6/ Thus,
contrary to petitioners' repeated suggestion, (Br. 6, 16-17, 28,
37-38, 48), the legality of the officers' conduct itself is not in
issue here, and therefore the court of appeals' decision certainly
does not "countenance( )" (Br. 24) police activity that threatens the
public's right to "live as free men and women, safe in (their) homes
from lawless government intrusion" (Br. 37).  The question presented
is not one of substantive Fourth Amendment law, but rather simply one
of remedy -- whether the policies underlying the exclusionary rule
require that evidence discovered during a warrant search should be
suppressed even though untainted by the prior illegal entry.

   The principles that guide this determination are well established.
The exclusionary rule has been viewed as a remedial measure necessary
to deter constitutional violations by law enforcement officers by
removing the incentive to commit those violations.  See, e.g., Stone
v. Powell, 428 U.S. 465, 486 (1976).  At the same time, this Court has
repeatedly recognized that application of the exclusionary rule
imposes significant costs on society by preventing the use at trial of
reliable, probative evidence, thus allowing culpable defendants to go
free.  Accordingly, "(a)s with any remedial device, the application of
the rule has been restricted to those areas where its remedial
objectives are thought most efficaciously served." United States v.
Calandra, 414 U.S. 338, 348 (1974).

   The exclusionary rule generally provides that evidence obtained as
the direct result of a violation of a defendant's Fourth Amendment
rights should be suppressed.  For example, evidence discovered in the
course of an illegal search ordinarily should be excluded.  See, e.g.,
United States v. Chadwick, 433 U.S. 1 (1977).  Such evidence is
sometimes called "primary evidence" because it is discovered while the
Fourth Amendment violation is occurring.  See 3 W. LaFave, Search and
Seizure Section 11.4, at 612 (1978).  In addition, evidence that is
subsequently discovered through exploitation of a prior constitutional
violation is subject to suppression as the "fruit of the poisonous
tree" (Nardone v. United States, 308 U.S. 338, 341 (1939)).  See,
e.g., Brown v. Illinois, 422 U.S. 590 (1975).  In these "derivative
evidence" situations, the relevant inquiry is whether the evidence was
obtained "'by exploitation of (the prior) illegality or instead by
means sufficiently distinguishable to be purged of the primary
taint.'" Wong Sun v. United States, 371 U.S. 471, 488 (1963) (citation
omitted).  Thus, some evidence may be admissible at trial even if a
Fourth Amendment violation is the "but-for cause" of its discovery,
provided the connection between the illegality and the evidence is
sufficiently attenuated.

   At a minimum, however, it is clear that suppression is appropriate
only if "the callenged evidence is in some sense the product of
illegal governmental activity." United States v. Crews, 445 U.S. 463,
471 (1980).  If an individual has been the victim of a Fourth
Amendment violation, evidence nevertheless may be introduced against
him if it is obtained from an "independent source" and thus is not the
product of the illegality.  Silverthorne Lumber Co. v. United States,
251 U.S. 385, 392 (1920).  In our view, this basic principle compels
affirmance of the decision of the court of appeals, because the
evidence first discovered in executing a valid search warrant at
petitioners' apartment was not the product of the earlier illegal
entry.

 A. The Officers' Entry Into Petitioners' Apartment To Secure The
Premises Was Not An Illegal Seizure Of All Of Its Contents

   Petitioners' principal contention (Br. 22-34) is that the evidence
in question, /7/ which was first discovered in the course of a valid
warrant search based on probable cause known to the officers before
they entered petitioners' apartment, was illegally seized at the time
of the entry and that such illegal seizure continued until the search
warrant was executed.  That is so, petitioners argue, because the
officers' action prevented anyone from removing any of the contents of
the apartment pending the issuance of the warrant (see Br. 24).
Therefore, even though the evidence in question was not discovered in
the course of or as a direct result of an illegal search, petitioners
contend that it must be suppressed as "primary" (Br. 28, 36) illegally
seized evidence.  /8/ This contention must fail because there was no
illegal seizure here;  to the extent the officers' actions prior to
the execution of the search warrant constituted a seizure of the
evidence at issue, that seizure was justified by probable cause and
did not violate the Fourth Amendment.

   Assuming that the officers "seized" the evidence in question within
the meaning of the Fourth Amendment when they secured petitioners'
apartment, /9/ there was nothing illegal about the seizure.  Putting
aside for the moment the officers' entry into the apartment, which
necessarily resulted in a limited search (see Part B, infra),
petitioners' contention that there was an illegal seizure here rests
on the fact that the officers divested them of control and custody of
their possessions by securing the premises and forbidding removal of
any of the contents of the apartment.  This action, however, did not
violate the Fourth Amendment.  To the contrary, the officers' decision
to secure the premises accords with this Court's prescription for
dealing with the situation where the police have probable cause to
believe that evidence or contraband is present in a private area,
namely, preserving the status quo pending the issuance of a search
warrant.

   It is not disputed that the police officers had probable cause to
believe that contraband would be found in petitioners' apartment at
the time they first entered.  Quite apart from the results of their
extended surveillance of petitioners, the officers had been informed
by Rivudalla that petitioners that afternoon had supplied him with a
half a kilogram of cocaine.  Rivudalla also had indicated to the
agents that Segura probably possessed more cocaine in his apartment,
reporting that he had not bought all the cocaine that Segura offered
for sale (J.A. 9-10).  Indeed, both courts below upheld the validity
of the search warrant based on the information known to the officers
before they entered the apartment (J.A. 13, 24), thus recognizing the
existence of probable cause at that point.  Given the existence of
probable cause, we submit that the police were entitled to secure the
premises to preserve the status quo, although, of course, they were
not entitled to secure it by making an entry unless exigent
circumstances existed.

   Petitioners correctly state (Br. 23) that the Fourth Amendment
protects against both unreasonable searches and unreasonable seizures.
 They seriously err, however, in asserting (Br. 23) that there is no
distinction between searches and seizures with regard to what
precautions satisfy the reasonableness standard and, based on that
premise, in arguing that the officers unlawfully secured their
premises in the absence of a warrant.  In fact, there is a sharp
distinction between searches and seizures with respect to the
necessity for the prophylactic measure of a warrant.  Because seizures
involve only an interference with an individual's possessory interest,
and hence are less intrusive than privacy-invading searches, seizures
on the basis of probable cause are generally permitted without a
warrant.  See, e.g., Texas v. Brown, No. 81-419 (Apr. 19, 1983), slip
op. 8 (plurality opinion) ("(O)ur decisions have come to reflect the
rule that if, while lawfully engaged in an activity in a particular
place, police officers perceive a suspicious object, they may seize it
immediately.").  See also id. at 2-3 (Stevens, J., concurring);
United States v. Place, No. 81-1617 (June 20, 1983), slip op. 5;
Payton v. New York, 445 U.S. 573, 587 (1980);  G.M. Leasing Corp. v.
United States, 429 U.S. 338, 354 (1977).  Indeed, even the more
intrusive seizure of a person (i.e., an arrest), may be effected in a
public place without a warrant.  United States v. Santana, 427 U.S.
38, 41-42 (1976);  United States v. Watson, 423 U.S. 411 (1976).  /10/

   It follows from these principles regarding extended or permanent
seizures that police may seize property that they have probable cause
to believe contains contraband for the limited period necessary to
obtain a search warrant.  In Arkansas v. Sanders, 442 U.S. 753 (1979),
the Court held that a warrant was necessary to search on the basis of
probable cause a suitecase found in an automobile, but it made clear
that there was no such prerequisite to seizure of the suitcase;
rather, the Court explained that the police acted "commendably" (id.
at 761) in seizing the suitcase and that the proper course of action
for police faced with such a situation would be to seize the suitcase
and take it to a magistrate to await the issuance of a warrant.  Id.
at 764 n.13.  See also United States v. Place, supra, slip op. 5 n.3;
United States v. Chadwick, supra, 433 U.S. at 13 & n.8;  Chambers v.
Maroney, 399 U.S. 42, 51-52 (1970).  Such a seizure of a container is
merely a common application of a more general rule that the police may
take reasonable measures to prevent the destruction of evidence and
preserve the status quo pending issuance of a search warrant.  See,
e.g., Cupp v. Murphy, 412 U.S. 291, 298 (1973) (Marshall, J.,
concurring) (approving a warrantless search of an arrestee because
"there was no way to preserve the status quo while a warrant was
sought").  /11/

   When, as here, police officers have probable cause to believe that
contraband is contained in a dwelling, the same principles apply.  As
long as they do not invade a privacy interest, the police are entitled
to preserve the status quo while they obtain a warrant by securing the
premises, and thus arguably "seizing" the dwelling and its contents to
prevent the destruction of evidence.  Although the Court has never
been faced with a specific challenge to an action securing the
premises, the Court's opinions reflect the understanding that such a
"seizure" is reasonable under the Fourth Amendment.  In Rawlings v.
Kentucky, 448 U.S. 98 (1980), police lawfully entered a house armed
with an arrest warrant.  After unsuccessfully searching for the
individual named in the warrant, several police officers detained the
occupants of the house while fellow officers obtained a search
warrant.  This Court considered and ultimately rejected the contention
that statements made by the detainees should be suppressed as the
fruits of an illegal detention.  Id. at 106-110.  /12/ Significantly,
however, the Court never doubted the admissibility of the evidence
discovered when the warrant was executed, apparently assuming that the
officers were entitled to remain in the house to prevent the
destruction of evidence while the warrant was being obtained.
Similarly, in Mincey v. Arizona, 437 U.S. 385, 394 (1978), the Court
held unconstitutional a warrantless search of an apartment where a
homicide had been committed, but it noted approvingly the use of a
police guard to prevent the destruction of evidence, suggesting that
this precaution should have been taken while the officers obtained a
search warrant.  See also United States v. Jeffers, 342 U.S. 48, 52
(1951);  United States v. Ross, 655 F.2d 1159, 1196 (D.C. Cir. 1981)
(Wilkey, J., dissenting), rev'd, 456 U.S. 798 (1982);  United States
v. Hayes, 518 F.2d 675, 678 (6th Cir. 1975);  2 W. LaFave, Search and
Seizure Section 6.5, at 451 (1978).

   In sum, given the officers' probable cause to believe that there
was contraband in petitioners' apartment, it was reasonable under the
Fourth Amendment for the officers to take steps to prevent destruction
of that evidence by securing the premises.  That does not mean that
the officers were entitled to enter the apartment and infringe
petitioners' privacy interest in their dwelling in the absence of
exigent circumstances or some other justification for entering, but it
does mean that they were permitted to station themselves in a place
where they had a right to be and prevent persons from entering the
apartment to destroy evidence until the warrant was issued.  To the
extent such action is deemed a Fourth Amendment "seizure," it is not
unlawful.  /13/

   In this case, of course, the officers did not simply secure the
premises from the outside;  after Segura's arrest, they entered the
apartment and thereafter remained inside to secure the premises.  This
entry, which intruded onto petitioners' privacy interest and thus was
a "search," poses a distinct question (discussed in Part B, infra) as
to whether the entry should result in suppression.  But it is
important to note that, contrary to petitioners' suggestion (Br. 9,
11, 22-24), the fact that the officers remained inside the apartment
after this entry rather than going back outside to secure the premises
is irrelevant to whether there was an illegal seizure.  Petitioners'
argument that there was an illegal seizure rests on the officers'
"control" of the apartment in the sense that they would not permit
removal of its contents until the warrant was issued;  this control
would have been exercised to the same extent whether the officers
remained in the apartment or guarded it from the outside.  In other
words, while there is a sense in which it could be said that items
concealed in a house are constructively "seized" by official action
preventing access to the premises, the degree of this seizure is the
same whether the premises are secured from outside or from within.

   The one federal court whose decisions lend support to petitioners'
seizure theory, the Ninth Circuit, has explicitly recognized this
fact.  In United States v. Lomas, 706 F.2d 886 (1983), police officers
entered a hotel room, stayed inside for 30 seconds to determine that
no one was there, and then locked the door when they exited so that no
one could enter without the assistance of the hotel management.
Relying on its earlier decision in United States v. Allard, 634 F.2d
1182 (9th Cir. 1980), the court of appeals held that this entry was
not justified by exigent circumstances and therefore that evidence
later discovered in the hotel room pursuant to a warrant search was
subject to suppression as the product of an earlier illegal seizure.
The court explained that Allard was directed at all "police attempts
to maintain the status quo by exercising control over a place while
seeking a search warrant." 706 F.2d at 894.  Hence, the court stated,
"(t)hough the officers here exercised control over a hotel room by
locking the door rather than waiting inside and decided to seek a
warrant before they entered the room rather than afterward, these
differences are not legally significant." Ibid.; footnote omitted.  As
explained above, we strenuously disagree with the Lomas court (see id.
at 894 n.3) and with petitioner that the police are not permitted to
take steps to preserve the status quo pending the issuance of a
warrant;  indeed, the absurd result in Lomas highlights the inadequacy
of petitioners' position.  /14/ Accordingly, we maintain that no
illegal seizure occurred in this case, and we turn to the question
whether the search entailed in the entry into the apartment requires
suppression of the evidence in question.

 B. The Evidence Seized Under The Warrant Is Not Suppressible As The
Fruit Of An Illegal Entry

   The court of appeals held that exigent circumstances did not
justify the officers' warrantless entry into petitioners' apartment
because they lacked sufficient reason to fear that evidence would be
destroyed before the warrant issued.  Therefore, the entry and ensuing
security search violated the Fourth Amendment.  Because the discovery
of the evidence in question here was not a product of this illegality,
however, but rather was derived from the independent source of an
untainted warrant, we submit that the court of appeals correctly held
that the evidence was not a "fruit" of the illegality and hence should
not be suppressed.

 1. A Fourth Amendment Violation Requires Suppression of Evidence Only
When an Exploitation of the Illegality Causes the Discovery of the
Evidence

   From the inception of the exclusionary rule this Court has
recognized that not all evidence discovered after the commission of a
Fourth Amendment violation is subject to suppression.  The sanction of
the exclusionary rule, which has the harsh consuquence of excluding
probative evidence from trial, is imposed only against the "fruit of
the poisonous tree";  evidence untainted by the illegality is not a
suppressible fruit.  As Justice Holmes explained in Silverthorne
Lumber Co. v. United States, supra, 251 U.S. at 392:

      The essence of a provision forbidding the acquisition of
      evidence in a certain way is that not merely evidence so
      acquired shall not be used before the Court but that it shall
      not be used at all.  Of course this does not mean that the facts
      thus obtained become sacred and inaccessible.  If knowledge of
      them is gained from an independent source they may be proved
      like any others, but the knowledge gained by the Government's
      own wrong cannot be used by it in the way proposed.

   See also United States v. Wade, 388 U.S. 218, 241 (1976);  Nardone
v. United States, supra, 308 U.S. at 341.

   In Wong Sun, the Court reiterated that "the exclusionary rule has
no application (where) the Government learned of the evidence 'from an
independent source.'" 371 U.S. at 487, quoting Silverthorne Lumber Co.
v. United States, supra.  The Court went on to explain that even
evidence derived in some way from a Fourth Amendment violation should
not be suppressed unless it was sufficiently tainted by the illegality
to be considered "fruit of the poisonous tree." It stated (371 U.S. at
487-488;  citation omitted):

      We need not hold that all evidence is "fruit of the poisonous
      tree" simply because it would not have come to light but for the
      illegal actions of the police.  Rather, the more apt question in
      such a case is "whether, granting establishment of the primary
      illegality, the evidence to which instant objection is made has
      been come at by exploitation of that illegality or instead by
      means sufficiently distinguishable to be purged of the primary
      taint."

   See also Brown v. Illinois, supra, 422 U.S. at 599.

   It is often difficult to determine whether the discovery of
evidence that is traceable to a Fourth Amendment violation is
sufficiently attenuated to permit its introduction at trial under Wong
Sun.  But the Court's statements in Silverthorne Lumber Co. and Wong
Sun make clear that the attenuation question arises at all only if the
illegality is the "but-for" cause of the discovery of the evidence.
The indispensable first step to finding that evidence should be
suppressed is a determination that "the challenged evidence is in some
sense the product of illegal governmental activity." United States v.
Crews, supra, 445 U.S. at 471.  Thus, in Crews, a witness identified
the defendant as her assailant based on a photograph taken of him
during a concededly illegal detention.  That illegality, however, was
not a basis for suppressing the witness's in-court identification.
That identification was founded on the witness's mental picture of her
assailant formed at the time of the crime, and thus it was not a
product of the illegal detention.

 2. The Illegal Entry Did Not Cause the Discovery of the Evidence in
This Case

   As explained in Part A, supra, there was nothing illegal about the
officers' acting to secure petitioners' apartment from the outside.
What was illegal in the absence of exigent circumstances was the
search entailed in the entry and security check of the apartment,
which exposed portions of the private interior of the apartment to the
view of the officers.  The evidence in question here, however, did not
derive from this illegal search.  As in Crews, "the Fourth Amendment
violation * * * yielded nothing of evidentiary value that the police
did not already have in their grasp" (445 U.S. at 475 (plurality
opinion) (footnote omitted)), i.e., the entry was not a "but-for"
cause of the discovery of the evidence.

   It is undisputed that the police officers did not discover any of
the cocaine, cash, or narcotics records at issue here in the course of
their entry and security check of petitioners' apartment, nor did they
see anything else that contributed to their subsequent discovery of
these items.  /15/ These items were discovered only when the officers
searched the apartment pursuant to a valid warrant based on probable
cause;  indeed, the officers did not even know for certain of the
existence of the evidence in question until it was found during the
warrant search.  Plainly, this evidence was a product of the lawful
warrant search, not the prior unlawful entry and security search.

   The warrant search itself, of course, was untainted because, as
both courts below recognized (J.A. 13, 24), the underlying affidavit
(J.A. 28-29) established probable cause based on the information known
to the officers before the illegality occurred.  Thus, the source for
the warrant and the subsequent discovery of the evidence antedated,
and was completely independent of, the illegal entry;  therefore the
warrant search itself cannot be characterized as a "fruit." See United
States v. Crews, supra, 445 U.S. at 471-472.

   In sum, the illegal entry was simply irrelevant in the traditional,
causal sense to the discovery and seizure of the evidence in question.
 If the officers had not entered the apartment and conducted a
security check, their subsequent actions that resulted in the
discovery of the evidence would have been identical.  They still would
have obtained a search warrant, searched petitioners' apartment in the
same manner, and discovered the same evidence that they did in the
course of the warrant search actually conducted here.  Nothing seen
during the illegal entry contributed to the discovery of the evidence,
and thus finding the initial entry to be an illegal search provides no
basis for suppressing that evidence.  See People v. Arnau, 58 N.Y.2d
27, 444 N.E.2d 13, 17, 457 N.Y.S.2d 763, 767 (1982).

 3. The Possibility that the Evidence Would Have Been Destroyed Before
the Warrant Issued is Not a Valid Basis for Suppression

   There is one sense in which it can be argued that the evidence in
question might not have been discovered but for the illegal entry:  if
the officers had not entered, but rather secured the premises from the
outside, petitioner Colon might have been able to destroy the evidence
before the warrant was issued and hence prevent its discovery pursuant
to the lawful search.  Petitioners do not appear to advance this
contention, but the theory was the basis for the district court's
conclusion that the evidence should be suppressed.  See J.A. 15;  see
also United States v. Allard, supra, 634 F.2d at 1187.  For several
reasons, however, the possibility that the entry prevented the
destruction of evidence should not be held to convert evidence
discovered pursuant to a valid warrant search into a suppressible
fruit of an antecedent illegal entry.

   The court of appeals correctly rejected the district court's theory
as "prudentially unsound" (J.A. 25).  The warrant requirement of the
Fourth Amendment is not designed to protect an individual's ability to
destroy evidence or contraband in the time required to procure a
warrant, thereby preventing its discovery.  In the words of Judge
Traynor, "(s)uspects have no constitutional right to destroy or
dispose of evidence," and denying them the ability to do so provides
no basis for suppression.  People v. Maddox, 46 Cal.2d 301, 306, 294
P.2d 6, 9, cert. denied, 352 U.S. 858 (1956).  Indeed, under 18 U.S.C.
2232, it is a criminal offense for any person "to prevent the seizure
or securing" of goods by destroying or removing them before they are
lawfully seized by the authorities.  See also 18 U.S.C. 1510
(obstruction of justice).  Surely, the costly remedy of the
exclusionary rule should not be invoked in order to safeguard the
ability of individuals to escape responsibility for one crime by
destroying evidence of it, committing in the process a second criminal
offense.

   Moreover, as the court of appeals pointed out (J.A. 25-26),
suppression on this basis is self-contradictory.  An illegal entry can
be the but-for cause of the discovery of evidence in this sense only
if there were persons present in the apartment who would have removed
or destroyed the evidence before a warrant was obtained.  /16/ But in
that case exigent circumstances would in fact exist that would justify
an entry into the apartment to prevent the destruction of evidence.
Put another way, either (1) the evidence would have been destroyed
before the warrant issued if the officers had not entered the
apartment, in which case immediate entry was in fact necessary, or (2)
the evidence would not have been destroyed before the warrant issued
even if the officers had not entered the apartment, in which case the
entry in no way was a but-for cause of the discovery of the evidence.
Under either assumption, there is no sound justification for
suppressing the evidence discovered pursuant to the warrant search as
the fruit of an illegal entry.

   The district court plainly was guilty of this precise
self-contradiction.  It first found a Fourth Amendment violation here
by concluding that exigent circumstances did not justify the entry
because the officers "had no proof that anyone was in the apartment"
(J.A. 14).  The court then turned around and, without reference to
this prior conclusion, held that the evidence was a fruit because
petitioner "Colon might well have destroyed the evidence had she not
been illegally excluded" from the apartment (J.A. 15).  /17/ We
acknowledge that these two statements are not inevitably inconsistent
because, as the court of appeals stated (J.A. 25-26), the officers'
entry did not necessarily comport with the Fourth Amendment just
because it later turned out that the apartment was occupied.  The
validity of the officers' determination that exigent circumstances
existed turns on an objective appraisal of the facts known to them
when they entered the apartment;  it should not be vindicated on the
basis of hindsight.  But, by the same token, the fact that the
officers were correct in believing that the apartment was occupied,
and hence that there were in fact exigent circumstances, cannot be
ignored in considering whether the exclusionary rule should apply.

   Surely there is a logical problem in recognizing that warrantless
entry is generally permitted to prevent the destruction of evidence,
yet holding that in a particular case evidence must be suppressed
because its destruction was prevented by an entry that is held illegal
only because there was an insufficient basis to suspect that evidence
might be destroyed.  The anomalousness of the district court's
approach is compounded by the fact that, if the apartment is
unoccupied when the officers enter, the entry cannot even arguably be
said to have aided the discovery of the evidence by preventing its
destruction, in which event it is entirely impossible to contend that
the evidence is a fruit.  See note 16, supra.  Thus, as the court of
appeals noted (J.A. 26), the district court's fruits theory has the
bizarre consequence of penalizing the officers for being right.  The
evidence is suppressed when the officers were correct in their belief
that the apartment was occupied and hence the entry was in fact
necessary, yet the evidence is admitted when the officers were
incorrect in their belief and the apartment was unoccupied.  This
results in suppression in the very cases, and only those cases, where
there were in fact exigent circumstances;  if the officers' entry was
unjustified, the evidence would be admitted, but if the officers'
entry actually prevented individuals from successfully destroying
evidence, the district court would have the exclusionary rule applied
to suppress the evidence and thereby effectively complete the
criminal's thwarted effort.

   Even if suppression on this basis were not so self-contradictory,
the evidence in question here cannot be characterized as a "fruit"
under established attenuation principles.  The possibility that the
evidence would have been destroyed if the officers had not entered to
secure the premises establishes, at most, a tenuous "but-for"
connection between the discovery of the evidence and the illegality.
/18/ It is well established, however, that but-for causation is only
the starting point of the inquiry whether evidence is a suppressible
fruit.  The exclusionary rule requires suppression only when the
evidence has been discovered by "'exploitation of the illegality'";
suppression is not appropriate when the connection between the
illegality and the evidence is sufficiently attenuated that its
discovery is "'by means sufficiently distinguishable to be purged of
the primary taint.'" Wong Sun v. United States, supra, 371 U.S. at 488
(citation omitted).  See also Rawlings v. Kentucky, supra, 448 U.S. at
106;  United States v. Ceccolini, 435 U.S. 268, 274-275 (1978).

   Under the attenuation test set forth in Wong Sun, this is the
clearest case imaginable for finding that particular evidence is not a
fruit.  Even accepting the assumptions that establish such a causal
connection (see note 18, supra), the connection between the illegality
and the discovery of the evidence is indirect and quite attenuated --
the possibility that the evidence would have been destroyed but for
the illegality.  The evidence was actually discovered pursuant to an
untainted warrant search, which is plainly a "means sufficiently
distinguishable to be purged of the primary taint" (Wong Sun v. United
States, supra, 371 U.S. at 488).  By the same token, there is little
basis for finding that the evidence was discovered by "exploitation of
(the) illegality." Ibid.  After the entry and limited security check,
the officers conducted no search for evidence until a warrant was
obtained.  The decision to wait a search warrant despite their
premature and unexpected entry, which they believed to be necessitated
by exigent circumstances, is antithetical to the concept of
"exploiting" an illegal entry.  Compare Brown v. Illinois, supra.

   Accordingly, apart from the Ninth Circuit (see United States v.
Lomas, supra;  United States v. Allard, supra), the courts of appeals
generally have held that evidence discovered in the course of an
untainted warrant search is admissible despite a prior entry to secure
the premises that was not justified by exigent circumstances.  See
United States v. Perez, 700 F.2d 1232, 1237-1238 (8th Cir. 1983);
United States v. Beck, 662 F.2d 527, 530 (8th Cir. 1981);  United
States v. Kinney, 638 F.2d 941, 945 (6th Cir.), cert. denied, 452 U.S.
918 (1981);  United States v. Fitzharris, 633 F.2d 416, 421 (5th Cir.
1980), cert. denied, 451 U.S. 988 (1981);  United States v. Korman,
614 F.2d 541, 547 (6th Cir.), cert. denied, 446 U.S. 952 (1980);
United States v. Edwards, 602 F.2d 458, 469 n.12 (1st Cir. 1979)
(dictum);  see also United States v. Bosby, 675 F.2d 1174, 1180-1181
(11th Cir. 1982) (illegal search of briefcase not ground for
suppressing documents found in subsequent warrant search of briefcase
by another officer);  People v. Arnau, supra (N.Y. Ct. App.)
(expressly rejecting Allard);  People v. Barndt, 199 Colo. 51, 604
P.2d 1173, 1175-1176 (1980);  State v. Fenin, 154 N.J. Super. 282,
287, 381 A.2d 364, 367 (1977).

   In short, the discovery of the evidence pursuant to the untainted
warrant search here was not a fruit of the illegal entry;  rather, it
is a classic example of evidence obtained through a source independent
of the illegality that is therefore not subject to suppression.  In
the words of Judge Sobeloff:  "It is one thing to say that officers
shall gain no advantage from violating the individual's rights;  it is
quite another to declare that such a violation shall put him beyond
the law's reach even if his guilt can be proved by evidence that has
been obtained lawfully." Sutton v. United States, 267 F.2d 271, 272
(4th Cir. 1959).

 C. The Conduct Of The Police Here Provides No Basis For Applying The
Exclusionary Rule To Suppress Evidence That Is Not The Fruit Of An
Illegality

   Petitioners contend that the officers here were guilty of
"flagrant" (Br. 40, 42) and "disgraceful police misconduct" (id. at
35-36) and demonstrated a "disgraceful and purposeful disregard * * *
of the Fourth Amendment" (id. at 37).  Petitioners appear to argue
that general considerations of deterrence justify suppression of the
evidence here even if it is not subject to suppression under
traditional exclusionary rule principles.  This contention is both
theoretically and factually unsound.

   a. First, there is no theoretical basis for the contention that the
flagrancy of police misconduct in a particular case warrants
suppression of evidence not suppressible under ordinary Fourth
Amendment principles because not traceable to the misconduct.  See
generally United States v. Payner, 447 U.S. 727 (1980).  Because of
the harsh consequences of applying the exclusionary rule, /19/ this
Court has restricted its application to those situations where its
purposes -- principally the deterrence of police misconduct -- are
best served.  United States v. Calandra, supra, 414 U.S. at 348.  The
Court has determined that the policies of the exclusionary rule do not
warrant suppression when the discovery of the challenged evidence has
an independent untainted source or when the connection between the
evidence and the illegality has been sufficiently attenuated under the
Wong Sun test.  These principles reflect a general determination that
in such situations the incremental deterrent benefits that would flow
from suppression do not outweigh the substantial societal costs of
suppression.  See, e.g., United States v. Ceccolini, supra, 435 U.S.
at 275-276.  Even where the police misconduct can be termed
"flagrant," it is appropriate to adhere to that general determination.
 This does not reflect a condonation of the police conduct.  It simply
represents a limitation of the application of the exclusionary rule,
in accordance with its underlying policies, to situations where it is
an appropriate remedy;  the mere fact that an illegality has occurred
does not provide a sufficient basis to suppress evidence unconnected
to that violation.  See United States v. Payner, supra, 447 U.S. at
733-736;  see also United States v. Morrison, 449 U.S. 361, 365-366
(1981) (Sixth Amendment) ("(t)he remedy in the criminal proceeding is
limited to denying the prosecution the fruits of its transgression").

   This is not to say that the flagrancy of police conduct is
completely irrelevant in considering the proper application of the
exclusionary rule.  To the contrary, it is undoubtedly a relevant
consideration in certain contexts.  For example, in the "fruits" area
itself, the flagrancy of the police conduct is recognized as a
material factor in the attenuation inquiry, provided there is a causal
connection between the illegality and the evidence.  See Rawlings v.
Kentucky, supra, 448 U.S. at 109-110;  Brown v. Illinois, supra, 422
U.S. at 604.  /20/ "Flagrancy" is only part of the inquiry, however;
it is not alone a basis for suppression.  Where, as here, the
illegality and the discovery of the evidence are unrelated,
established Fourth Amendment principles reject the imposition of the
suppression remedy, even if the police action can be characterized as
"flagrant."

   b. Petitioners also appear to suggest (Br. 40-41) that, regardless
of the flagrancy of the officers' conduct in this particular case,
suppression is necessary as a general rule in circumstances such as
these in order to deter police from entering premises unlawfully in
every case in which they are seeking a search warrant.  That is,
petitioners suggest that unless an illegal warrantless entry is
punished in every case by suppression of all after-acquired evidence
-- even if the discovery of the evidence is not causally connected to
the illegality -- police officers will be encouraged to commit
flagrantly illegal entries while awaiting a warrant on the theory that
they have nothing to lose.  This concern is unfounded.

   First, the assertion that adherence to the independent source
doctrine in this context will materially encourage substantial Fourth
Amendment violations ignores the practicalities of the situations in
which the issue arises.  The officers, having decided that probable
cause exists and that a warrant should be produced, ordinarily have
every reason to expect that their investigation will not be hampered
by awaiting the magistrate's action on the warrant application.
Accordingly, if they possess little or no reason to fear the
destruction of evidence or the escape of suspects while awaiting the
warrant, they have little incentive to make a pre-warrant entry.  Such
a course of action would serve only to expose them to the risk of
civil liability without materially furthering their law enforcement
goals.  It is only when they entertain substantial fears that prompt
action to secure the premises is necessary that they are likely to
"jump the gun." But while they may sometimes be mistaken in such
instances in their conclusion that the circumstances are sufficiently
exigent to justify a warrantless entry, their improper action will in
the nature of things generally occur only when the premature entry
results from a marginal miscalculation rather than a gross or flagrant
violation.

   Moreover, admission of untainted evidence subsequently seized
pursuant to a valid search warrant does not eliminate every deterrent
to an illegal entry.  Even if the court of appeals' decision is
affirmed, there remain substantial disincentives to purposeful police
entries in the absence of exigent circumstances.  The illegal entry
itself automatically results in a search, and it can reasonably be
argued that items seen in plain view when the officers enter are
fruits of the entry.  Thus, in this case, several items of evidence
were ordered suppressed by the court of appeals because they were
first discovered during the initial entry and security check.  See
J.A. 26-27.  /21/ In addition, there may be probative evidence
suppressed as a fruit in connection with the apprehension of persons
inside the premises, such as the revolver and cash seized here from
petitioner Colon's purse (see J.A. 13) or statements made by an
arrestee.  See, e.g., Taylor v. Alabama, No. 81-5152 (June 23, 1982).
See also Gilbert v. California, 388 U.S. 263, 273-274 (1967) (lineup
identification).  Moreover, at the time the warrantless entry to
secure the premises is made, the police officers do not know for
certain that a warrant will actually issue, and thus they are not in a
substantially different position from officers in any situation where
a warrantless entry is contemplated.  See United States v. Apker, 705
F.2d 293, 307 (8th Cir. 1983).  Yet it has never been thought
necessary to reject the established "fruits" analysis in order to
deter all warrantless entries.  Finally, a deliberate violation of the
Fourth Amendment exposes the officers to possible civil liability.
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

   This is not to say that suppression would have no incremental
deterrent effect on illegal entries, only that, as in other areas of
Fourth Amendment law, the limited deterrent benefit is outweighed by
the substantial cost of suppression.  In short, there is no special
reason for excepting this case from the general principle that the
exclusionary rule does not require suppression of evidence that is not
the fruit of an illegality.

   c. Even assuming arguendo that petitioners are correct in asserting
that suppression of evidence not discovered as the result of an
illegal entry might be appropriate if the police acted in bad faith
(cf. Williams v. Nix, 700 F.2d 1164 (8th Cir. 1983), cert. granted,
No. 82-1651 (May 31, 1983) (bad faith exception to inevitable
discovery doctrine)), the underlying factual premise of their argument
in this case is manifestly erroneous.  The police officers here simply
did not act in bad faith or engage in flagrant misconduct.  Indeed,
while we have not asked this Court to rule on the fact-bound question
whether there were exigent circumstances, in our view it is an
extremely close question whether the officers' actions violated the
Fourth Amendment at all.  At most, they were guilty of committing a
good faith mistake in making the difficult on-the-spot determination
whether the existing circumstances were sufficiently exigent to
justify a warrantless entry to prevent the destruction of evidence.

   The court below correctly recognized (see J.A. 21-23) that a
warrantless entry and protective sweep to prevent the destruction of
evidence is permitted if officers have sufficient reason to believe
that someone is on the premises who is likely to destroy the evidence
before a search warrant is obtained.  See, e.g., United States v.
Santana, 427 U.S. 38, 43 (1976);  Johnson v. United States, 333 U.S.
10, 15 (1948);  United States v. Martino, 664 F.2d 860, 869-870 (2d
Cir. 1981), cert. denied, No. 81-6755 (June 28, 1982);  United States
v. Wiga, 662 F.2d 1325, 1329-1333 (9th Cir. 1981), cert. denied, 456
U.S. 918 (1982).  The court held that there were no exigent
circumstances here, however, because the officers did not have
sufficient reason to believe that the apartment was occupied or that
the occupants were about to destroy evidence;  but this holding is at
least open to question under the facts of this case.

   First, there is no doubt that the agents had probable cause to
believe that there was evidence in the apartment, as is manifested by
the issuance of the search warrant.  See page 17, supra.  Second, they
had strong reason to believe that, if the apartment were occupied, the
occupants would be alerted that something was wrong and would attempt
to destroy the evidence before the warrant was obtained.  Rivudalla
had told the police that Segura was scheduled to call him that evening
at 10:00 p.m. to find out whether he had been able to sell the cocaine
(J.A. 18;  H. Tr. 151).  Rivudalla's failure to be present to receive
the scheduled call because of his arrest might well have suggested to
the occupants that he had been arrested or at least that something was
amiss;  by the same token, Segura's arrest and his resulting failure
to return to his apartment that night would also have given the
occupants of the apartment reason to consider destroying the evidence.
 See, e.g., United States v. Campbell, 581 F.2d 22, 26 (2d Cir. 1978).

   These facts alone did not establish exigent circumstances because
the officers initially had insufficient reason to believe that the
apartment was occupied.  The officers did not hear any noise coming
from the apartment, and, accordingly, they did not enter, but rather
established surveillance from the outside.  The situation changed,
however, when Segura returned to the apartment building alone at 11:15
pm.m, and was arrested.  At that point, the agents realized that
Colon, whom they had assumed was with Segura (see H. Tr. 394), was
probably in the apartment (her residence) given the lateness of the
hour.  The realization that the apartment was probably occupied,
coupled with the other information known to the officers, gave rise to
a reasonable basis for suspecting that the evidence might be destroyed
if entry was postponed until a warrant was obtained the next day.
/22/ While the court of appeals considered these factors and held that
they did not establish a sufficient degree of suspicion that evidence
might be destroyed to justify a warrantless entry, the exigent
circumstances question is plainly a close question of law, and the
officers' commission of a Fourth Amendment violation, if there was a
violation at all, manifestly resulted from a good faith misjudgment in
a difficult situation.

   The other actions taken by the officers, both before and after the
entry, buttress the conclusion that they acted in good faith at all
times.  First, after Rivudalla's arrest, they contacted the United
States Attorney's office to attempt to obtain a search warrant rather
than acting on their own initiative.  See United States v. Campbell,
supra, 581 F.2d at 27 & n.9.  When the Assistant United States
Attorney informed them that a warrant could not be obtained until the
following day, /23/ the officers carried out the attorney's
instructions to secure the premises from the outside.  Only when the
situation changed did the officers enter the apartment on the basis of
their belief that a substantial danger existed that evidence would be
destroyed, /24/ and they then took no action beyond that reasonably
necessary to preserve the evidence.  They limited the privacy
intrusion to a security check for the presence of persons (which was
proper conduct if there were in fact exigent circumstances) and did
not make any evidentiary search until the warrant was issued.  Compare
Vale v. Louisiana, 399 U.S. 30 (1970) (warrantless evidentiary
search).  /25/ In sum, the officers at no time sought to subvert the
warrant process;  all their actions were taken with the understanding
that no evidentiary search would be undertaken unless and until the
warrant they were in the process of seeking was obtained, and their
actions were aimed at facilitating that end.

   Petitioners object (Br. 45) that the length of time between the
entry and the issuance of the warrant -- 19 hours -- evidences the
police officers' bad faith.  This is simply not so.  While 19 hours
might often be an unreasonable length of time to secure premises
pending the issuance of a warrant, and this delay perhaps could have
not false pretenses, where the thief fraudulently induces the owner to
part with title to the property.  Such been shortened somewhat here,
in the circumstances of this case the amount of time consumed before
the warrant issued does not indicate any bad faith.  Petitioners'
objection essentially is that the warrant was not obtained until 6:00
p.m. the following day rather than first thing in the morning.  But
this delay was occasioned by the fact that the police officers and
attorneys involved in the case focused their energies on expediting
the initial appearance of petitioners and the other arrestees before a
magistrate (see Fed. R. Crim. P. 5(a)) rather than on procuring a
warrant as quickly as possible (H. Tr. 161, 449-450).  It must be
emphasized that petitioners, the two residents of the apartment, both
had been arrested and were in custody.  The fact that their apartment
was secured against entry by them or others therefore did not really
affect them, and the delay in getting the warrant did not
inconvenience them.  /26/ Thus, while it would have been incumbent on
the officers to procure a warrant as expeditiously as possible if the
securing of the premises had the effect of restricting individuals'
access to their home, in the circumstances here it was reasonable for
the officers to place a higher priority on other duties, such as a
speedy judicial appearance, rather than obtaining a warrant as quickly
as possible.  /27/

   Petitioners also object (Br. 47-48) that the affidavit for the
search warrant did not include the observations made by the officers
during the security check.  /28/ This objection is mystifying.  The
function of the magistrate is not to assess whether the police
correctly determined that exigent circumstances justified a
warrantless entry to prevent the destruction of evidence.  Rather, the
magistrate's function is to make a probable cause determination, and
thus he was not misled in any way by the alleged omission.  There was
no reason for the police to include possibly tainted information in
the warrant application, thus creating a ground for challenging the
validity of the warrant;  rather, they acted prudently and properly in
drafting the affidavit to specify the basis for probable cause on
which they first determined to seek the search warrant -- before the
warrantless entry.

   In sum, the illegality in this case, to the extent there was a
Fourth Amendment violation at all, was the result of a good faith
misjudgment by police officers with respect to a difficult legal
determination.  That illegality did not contribute to the discovery of
the evidence in question, which was found during the execution of an
untainted warrant search.  Accordingly, well-established principles
dictate that the policies underlying the exclusionary rule do not
justify suppression of the evidence.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   D. LOWELL JENSEN

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   ALAN I. HOROWITZ

      Assistant to the Solicitor General

   PATTY MERKAMP STEMLER

      Attorney

   JULY 1983

   /1/ Rivudalla and Parra were indicted with petitioners.  They
pleaded guilty to the charges and absconded prior to sentencing.

   /2/ Two of these persons were charged in the original indictment,
but a superseding indictment subsequently was returned that charged
only petitioners, Rivudalla, and Parra (see H. Tr. 3).

   /3/ Incident to this arrest, Colon's handbag was searched before
she was allowed to take it with her to headquarters.  A loaded
revolver and more than $2,000 in cash were found (H. Tr. 370-371).
Those items were ordered suppressed by the district court as the
fruits of an illegal arrest (J.A. 13, 16).

   /4/ One agent explained that the application was not presented
earlier in the day because most of the day was spent processing the
arrests and presenting petitioners, Rivudalla, Parra, and the other
three occupants of petitioners' apartment to a judicial officer (H.
Tr. 161).

   /5/ On the second appeal, the court rejected the contention that
the search warrant was invalid because of material misrepresentations
in the affidavit, holding that this contention was foreclosed by the
court's decision on the government's pretrial appeal and that, in any
event, the district court had correctly concluded that there were no
material misstatements in the affidavit (J.A. 31-32).  The court also
rejected the contention that the evidence was insufficient (J.A. 32).

   /6/ Both courts below found that the initial, warrantless entry
into petitioners' apartment was not justified by exigent circumstances
and hence violated the Fourth Amendment.  Without conceding the
correctness of that determination (see pages 38-40, infra), we do not
contest it in this Court because of its fact-bound nature;  we
therefore assume arguendo throughout this brief that the officers'
initial entry did violate the Fourth Amendment.

   /7/ We refer here to the cocaine, cash, and narcotics records that
were not discovered until the warrant was executed.  See page 5,
supra.  The scale, lactose, and cellophane bags observed by the agents
in the course of their initial security check were ordered suppressed
by the court of appeals, and their admissibility is not in issue here.

   /8/ The cases relied on by petitioners for this contention (Br. 36)
are completely inapposite;  they all concern the suppression of
evidence discovered and seized in the course of an illegal search.
Petitioners' contention does find support, however, in Ninth Circuit
decisions characterizing a securing of the premises after an illegal
entry as an illegal seziure of the evidence within.  United States v.
Lomas, 706 F.2d 886, 893-894 (1983);  United States v. Allard, 634
F.2d 1182, 1186-1187 (1980).  Even the Ninth Circuit, however, has not
taken as extreme a position as petitioners.  Petitioners argue (Br.
29-34) that no "fruits" inquiry is appropriate because the evidence
was illegally seized, but the Ninth Circuit has recognized the
relevance of a "fruits" analysis in suggesting that such "illegally
seized" evidence should not be suppressed if the government can show
that it would have successfully obtained the evidence notwithstanding
the seizure.  United States v. Allard, supra, 634 F.2d at 1187.

   Other courts of appeals have either expressly or implicity rejected
petitioners' seizure theory in considering the admissibility of
evidence seized pursuant to warrant searches of premises that had
previously been secured by means of an allegedly illegal entry.  See
United States v. Beck, 662 F.2d 527, 530 (8th Cir. 1981);  United
States v. Fitzharris, 633 F.2d 416, 421 (5th Cir. 1980), cert. denied,
451 U.S. 988 (1981);  United States v. Korman, 614 F.2d 541, 542, 547
(6th Cir.), cert. denied, 446 U.S. 952 (1980);  United States v.
Edwards, 602 F.2d 458, 469 n.12 (1st Cir. 1979).  Petitioners'
reliance (Br. 24-25) on United States v. Griffin, 502 F.2d 959 (6th
Cir.), cert. denied, 419 U.S. 1050 (1974), is misplaced.  The Griffin
court did not suggest that an illegal seizure had occurred;  it held
that the evidence discovered during an illegal entry was the fruit of
an illegal search.  The New York Court of Appeals has explicitly
rejected petitioners' seizure theory.  People v. Arnau, 58 N.Y.2d 27,
444 N.E.2d 13, 17-19, 457 N.Y.S.2d 763, 767-769 (1982);  contra, State
v. Dorson, 615 P.2d 740, 744 (Hawaii 1980);  People v. Shuey, 13
Cal.3d 835, 850, 533 P.2d 211, 222, 120 Cal. Rptr. 83, 94 (1975)
(securing premises is "inchoate seizure" before individual contents
are "actually seized").

   /9/ When police officers secure an apartment to prevent removal of
its contents, there is some technical sense in which they can be said
to have "seized" all the contents of the apartment.  It seems clear,
however, that police cannot actually "seize" a particular movable
object in the ordinary sense of the word when they have not even
discovered it yet, and thus it is open to serious question whether the
underlying premise of petitioners' contention is correct, i.e., that
the evidence in question here was "seized" within the meaning of the
Fourth Amendment when the officers secured the premises (see Pet. Br.
24).  See, e.g., 1 W. LaFave, Search and Seizure Section 2.1, at 221
(1978) (citation omitted) (defining "siezure" as the "'act of
physically taking and removing tangible personal property'");  Hale v.
Henkel, 201 U.S. 43, 76 (1906) ("a seizure contemplates a forcible
dispossession of the owner").  While this Court has not had occasion
to address the issue directly, its analysis of search and seizure
cases reflects the view that the securing of premises does not
constitute a Fourth Amendment "seizure" of each of the individual
items contained therein.  For example, the Court has given detailed
consideration to the question of when the police may seize evidence
found in plain view in the course of executing a search warrant for
other evidence, even though the entire area being searched is under
the custody and control of the police during the search, and thus
presumably, under petitioners' theory, all the contents have already
been seized.  See, e.g., Texas v. Brown, No. 81-419 (Apr. 19, 1983);
Coolidge v. New Hampshire, 403 U.S. 443 (1971).  Similarly, the Court
has characterized the taking of individual items from an automobile as
a seizure, even though the occupants had already been arrested and the
entire automobile presumably was already within the custody and
control of the police.  See Texas v. Brown, supra, slip op. 8
(plurality opinion);  Colorado v. Bannister, 449 U.S. 1, 3-4 (1980).

   Moreover, acceptance of petitioners' theory would cast doubt on the
validity of well-established law enforcement practices that are
commonly recognized as constitutional.  For example, when executing a
search warrant, police officers routinely secure the premises in the
sense that they do not allow individuals to walk off with the contents
of the premises before the search is completed.  Cf. Michigan v.
Summers, 452 U.S. 692 (1981).  Similarly, it is often necessary for
police to cordon off an area during an investigation, for example, to
apprehend a fugitive or to investigate a bomb threat.  These
procedures result in the immobilization of items contained in the
secured premises, most of which obviously are not evidence of a crime,
but it cannot be maintained that these procedures expose the officers
to liability for "seizing" those items without probable cause.
Indeed, the implication of petitioners' contention is that the
specificity requirement of the Fourth Amendment can never be satisfied
by a warrant authorizing a seizure of specific items expected to be
found in a particular area (see United States v. Place, No. 81-1617
(June 20, 1983), slip op. 4), because the police necessarily will also
"seize" many innocuous items not covered by the warrant in the course
of executing the search.  By the same token, it is difficult to say
here that the officers "seized" the evidence within the meaning of the
Fourth Amendment simply because they secured the apartment, when they
had not yet even discovered the evidence.

   /10/ It is true, that, in the absence of exigent circumstances, a
warrant is necessary to effect an arrest in a home or an entry onto
private premises to effect a seizure of property, but that is because
of the invasion of privacy involved in the entry into the home (i.e.,
the search), not because of the intrusiveness of the arrest or seizure
itself.  See Payton v. New York, supra, 445 U.S. at 587-590;  G.M.
Leasing Corp. v. United States, supra, 429 U.S. at 354.

   /11/ Indeed, the possible destruction of evidence is such a
significant concern that in some situations it may justify a
warrantless search.  For example, the limited search incident to
arrest is permitted because of, inter alia, the danger of destruction
of evidence, even when the police have no particular reason to suspect
that the arrestee is concealing any evidence.  Chimel v. California,
395 U.S. 752, 763 (1969).  And, of course, if the police have
sufficient reason to believe that evidence is in danger of destruction
before a search warrant can be secured, exigent circumstances permit a
warrantless entry even into a dwelling.  See United States v. Santana,
427 U.S. 38, 43 (1976);  Vale v. Louisiana, 399 U.S. 30, 35 (1970);
Johnson v. United States, 333 U.S. 10, 15 (1948);  United States v.
Rubin, 474 F.2d 262 (3d Cir. 1973).

   /12/ Under Michigan v. Summers, supra, it would appear that this
detention did not violate the Fourth Amendment.

   /13/ We reiterate that in this case the officers plainly had
probable cause to believe that there were narcotics stored in
petitioners' apartment, and they were in the process of obtaining a
search warrant based on facts already known to them when they secured
the premises.  Thus, we do not contend that police officers lacking
probable cause to search are permitted to secure premises for more
than a brief time by limiting entry while they seek additional
evidence that would justify issuance of a search warrant.  Cf. United
States v. Allard, supra, 634 F.2d at 1187.

   /14/ Petitioners contend (Br. 40-44) that the police officers here
were not entitled to make use of the "impoundment alternative." It is
not clear whether petitioners are focusing on the entry into the
apartment or whether they are arguing that the police needed a warrant
to secure the premises from the outside -- a contention that we regard
as manifestly erroneous.  The phrase "impoundment alternative" is
apparently taken from the writings of two commentators.  See 2 W.
LaFave, supra, Section 6.5(c), at 450;  Note, Police Practices and the
Threatened Destruction of Tangible Evidence, 84 Harv. L. Rev. 1465,
1474-1489 (1971).  Each of these commentators approves the use of the
"impoundment alternative" in limited circumstances.  See 2 W. LaFave,
supra, Section 6.5(c), at 454-455;  84 Harv. L. Rev. at 1480-1481.  It
must be emphasized, however, that these commentators focus on an
impoundment effected by entering the house and do not suggest that
there necessarily should be restrictions on the power of police to
secure premises from the outside on the basis of probable cause.  See
2 W. LaFave, supra, Section 6.5(c), at 451-452;  84 Harv. L. Rev. at
1478.  Indeed, although Lomas creates some uncertainty on this point,
even the Ninth Circuit has recognized that securing premises from the
outside to preserve the status quo pending issuance of a warrant is
ordinarily reasonable under the Fourth Amendment.  See United States
v. Flickinger, 573 F.2d 1349, 1355-1356, cert. denied, 439 U.S. 836
(1978);  United States v. Sherwin, 572 F.2d 196, 200 (1977).

   /15/ As noted above (note 7, supra), the agents did discover a
scale, lactose, and some cellophane bags when they conducted the
security check, but the admissibility of those items into evidence is
not in issue in this Court.

   /16/ Thus, it is clear that when police officers illegally enter an
apartment and find it unoccupied, the entry is not, even under the
district court's theory, a but-for cause of the discovery of evidence
pursuant to a valid warrant.  If no one is in the dwelling, the
evidence could not have been destroyed before the warrant search
becuase the officers lawfully could have prevented other persons from
entering the prmises to destroy evidence.  Therefore, the district
court's theory does not explain cases such as United States v. Lomas,
supra, and United States v. Crozier, 674 F.2d 1293 (9th Cir. 1982),
petition for cert. pending, No. 82-819, where evidence seized pursuant
to an untainted warrant search was suppressed because of a prior
warrantless entry into unoccupied premises.

   /17/ The officers did have probable cause to arrest Colon, and thus
it is odd to say that she was "illegally excluded" from the apartment.
 The district court apparently was referring to the fact that she was
arrested in her apartment without a warrant (see Payton v. New York,
supra), although the constitutional infirmity in such an arrest is the
invasion of privacy associated with the warrantless entry (or search),
not the arrest itself, which is justified by probable cause.  See page
18, supra.

   /18/ Indeed, the court of appeals rejected the district court's
theory in part because it rests on "wholly speculative assumptions"
concerning whether Colon would have destroyed the evidence were it not
for the illegal entry -- i.e., the court doubted whether there was any
"but-for" connection at all.  We do not rely on this possibility that
the evidence would not have been destroyed as being fatal to
petitioners' claim because, in our view, it was quite likely that
Colon would have attempted to destroy the evidence before the warrant
was obtained and that that likelihood established exigent
circumstances that justified the warrantless entry.  See pages 38-40,
infra.  We note, however, that the district court's suppression of all
of the evidence does rest on a dubious speculation.  Assuming that
Colon did attempt to destroy the evidence inside the apartment before
the warrant issued, it is unlikely that she could have completed the
task of destroying the large quantity of evidence that existed without
creating telltale noises or odors that would have alerted the officers
stationed outside and provided them with a justification for entering
the apartment to prevent further destruction of evidence.  See J.A.
25.  Thus, even if the agents had not entered petitioners' apartment
when they did, it is likely that some of the evidence would have
remained and been discovered during the warrant search, and therefore
it is doubtful that the discovery of every item of evidence can be
said to be causally connected to the illegality.

   /19/ This Court has adverted many times to the costs of the
exclusionary rule.  There is a compelling "pubic interest in
prosecuting those accused of crime and having them acquitted or
convicted on the basis of all the evidence which exposes the truth."
Alderman v. United States, 394 U.S. 165, 175 (1969).  The application
of the exclusionary rule in a given case undermines this interest and
may allow "(t)he criminal * * * to go free because the constable has
blundered." People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587,
cert. denied, 270 U.S. 657 (1926).  Moreover, this consequence can
give rise to a public perception of unfairness that can have the
"effect of generating disrespect for the law and administration of
justice." Stone v. Powell, supra, 428 U.S. at 490-491 (footnote
omitted).  See generally Illinois v. Gates, No. 81-430 (June 8, 1983),
slip op. 12-13 (White, J., concurring in the judgment).

   /20/ Similarly, if the Court were to adopt the so-called "good
faith" exception to the exclusionary rule (see Illinois v. Gates,
supra (White, J., concurring);  United States v. Williams, 622 F.2d
830 (5th Cir. 1980) (en banc), cert. denied, 449 U.S. 1127 (1981)) --
a question now pending before it (see United States v. Leon, cert.
granted, No. 82-1771 (June 27, 1983) -- the flagrancy or "bad faith"
of the officers' conduct would be a critical factor in considering the
application of the exclusionary rule in a particular case.

   /21/ Because no cross-petition was filed in this case, the
correctness of this aspect of the court of appeals' holding is not
before this Court.  We note, however, that the holding is open to
question.  Even if the sighting of the evidence in plain view during
the warrantless entry makes the evidence a fruit of that entry, it is
also true that the warrant search provides a concurrent "independent
source" for its discovery.  Moreover, under the "invitable discovery"
doctrine, evidence that is the fruit of an illegality may nevertheless
be admitted at trial if it is shown that the evidence would inevitably
have been discovered anyway even if the illegality had not occurred.
See Brewer v. Williams, 430 U.S. 387, 406-407 n.12 (1977) (dictum).
The courts of appeals have universally adopted the inevitable
discovery doctrine (see, e.g., United States v. Apker, 705 F.2d 293,
306-307 (8th Cir. 1983);  United States v. Fisher, 700 F.2d 780, 784
(2d Cir. 1983);  United States v. Romero, 692 F.2d 699, 704 (10th Cir.
1982), and cases cited therein), and its validity is now before this
Court (Williams v. Nix, 700 F.2d 1164 (8th Cir. 1983), cert. granted,
No. 82-1651 (May 31, 1983)).  Unless the evidence would have been
destroyed before the warrant was obtained, which is not a possibility
when the premises are unoccupied, evidence seen during a warrantless
security check would inevitably have been discovered anyway during the
later execution of a search warrant and hence should be admissible
under the inevitable discovery doctrine.  See United States v.
Fitzharris, supra, 633 F.2d at 421;  contra, United States v. Griffin,
supra.

   /22/ Contrary to petitioners' contention (Br. 19-21), therefore,
this case is quite different from Vale v. Louisiana, supra, where the
Court held a warrantless entry and evidentiary search illegal because
it was not justified by any exigency.  399 U.S. at 35.  That
conclusion rested largely on the Court's finding that the search took
place after the officers had "satisfied themselves that no one else
was in the house." Id. at 34.

   /23/ It is not clear why a greater effort was not made to obtain a
search warrant when the officers first sought one, and we do not
condone the failure to do so.  Given that no warrant was available
that night, however, we contend that the police officers acted in good
faith at all times and that their conduct, to the extent it violated
the Fourth Amendment, cannot be characterized as flagrant misconduct.
We note that, subsequent to the events in this case, the United States
Attorney circulated an internal memorandum reemphasizing that search
warrants should be sought when at all possible, regardless of the
hour, in order to avoid the need for warrantless entries to secure
premises.  (A copy of this memorandum is being lodged with the Court
and furnished to counsel.) Accordingly, there is no reason to expect
that the failure to attempt to contact a magistrate because of the
lateness of the hour will be repeated in future cases.

   /24/ Petitioners erroneously assert (Br. 44) that the officers
flouted the instructions of both the Assistant United States Attorney
and Agent Palumbo in effecting the entry.  The officers in fact
closely followed the attorney's advice.  As petitioners note (ibid.),
he advised the officers (through Agent Palumbo) to secure the premises
from the outside, which they did for almost five hours.  The Assistant
United States Attorney also advised the officers that they were
allowed to enter the premises without a warrant if exigent
circumstances arose;  specifically, the attorney told Agent Palumbo
"if you have reason to believe that there was somebody inside that
could dispose of whatever was inside * * * you should go into the
premises * * * to secure the premises" (H. Tr. 445).  In accordance
with these instructions, Agent Palumbo directed several officers to
enter the apartment to secure the premises after Segura was arrested
(see H. Tr. 155-156).

   /25/ Petitioners also erroneously claim (Br. 45) that the occupants
of the apartment were illegally arrested.  It is clear that the
officers had probable cause to arrest petitioner Colon.  Her arrest
was illegal in the sense that the officers should not have entered the
apartment to arrest her in the absence of exigent circumstances
(Payton v. New York, supra), but this is the same illegality that is
the focus of this case.  That Colon's arrest was illegal for this
reason does not suggest any misconduct on the part of the police
officers that is not already inherent in the entry to secure the
premises.  Petitioners also appear to suggest that the arrests of the
other occupants were illegal for lack of probable cause.  They point
to no finding, however, that there was no probable cause for the
arrests;  indeed, such an assumption is substantially undermined by
the fact that two of the other occupants were indicted.  See note 2,
supra.

   /26/ Accordingly, the assertion (Br. 45) that the delay in
obtaining the warrant "prevent(ed) the normal use of the dwelling for
an absurdly extended period of time" is simply inaccurate.

   /27/ Petitioners contend (Br. 45-47) that it was flagrant
misconduct for the officers to remain inside to secure the premises
after the illegal entry.  This objection is misconceived.  Given that
the officers had already invaded petitioners' privacy by conducting a
security check of the apartment and that petitioners were in custody,
it made no practical difference whatsoever (except to the officers'
comfort) whether the officers proceeded to secure the premises by
sitting in the apartment or standing outside the door.  Petitioners'
reliance (Br. 47) on a quote from Professor LaFave's treatise is
misplaced because the "'more intrusive step'" referred to there is the
entry itself (and consequent search) not the act of remaining inside
the premises once the entry has already taken place.

   Petitioners also object tthat the officers were free "to rummage
around" the premises before the warrant issued, suggesting (Br. 45)
that the officers perjured themselves at the suppression hearing.  The
short answer to this contention is that the record unequivocally
demonstrates that the officers did not conduct an evidentiary search
except pursuant to the warrant (see H. Tr. 375-385), and the courts
below plainly credited the officers' testimony in this regard.  More
fundamentally, however, petitioners' objection highlights the crucial
defect in their position.  There is no reason to doubt the officers'
tesitmony that they did not conduct an evidentiary search before the
warrant arrived because there would have been no advantage for them in
doing so.  They expected to receive shortly a warrant authorizing them
to conduct such a search lawfully.  In the same way that a
hypothetical pre-warrant search would not have gained the officers
access to any evidence that they could not gain with the warrant, the
illegal entry also did not gain them any advantage with respect to the
discovery of evidence.  That is, the valid warrant was an untainted
source for the discovery of the evidence completely independent of the
illegal entry.

   /28/ The actual validity of the warrant is not before this Court
because it limited the grant of certiorari to Question 1 presented by
the petition (see J.A. 33).  Petitioners apparently raise this point
as evidence of the "flagrancy" of the officers' misconduct.