WINSTON M. SIMPKINS, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6568

   In The Supreme Court Of The United States

   October Term, 1990

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

   Memorandum For The United States In Opposition

   Petitioner contends that the court of appeals erred in reversing an
order suppressing as evidence cocaine, cash, weapons, ammunition, and
miscellaneous documents seized under a search warrant.

   1. Petitioner was indicted by a federal grand jury sitting in the
Western District of Missouri.  He was charged with possession of
cocaine with intent to distribute it, in violation of 21 U.S.C.
841(a)(1), and with using a firearm during and in relation to a drug
trafficking offense, in violation of 18 U.S.C. 924(c).  Before trial,
petitioner moved to suppress evidence that was seized from a residence
under a search warrant.  The district court granted the motion to
suppress on the ground that the warrant was not supported by probable
cause.  Pet. App. 11a-26a.

   The court of appeals reversed.  Pet. App. 1a-10a.  The court found
no fault with the district court's finding that the affidavit failed
to establish probable cause.  Applying the good faith exception to the
exclusionary rule, however, the court of appeals concluded that the
evidence should not have been suppressed, because the police officers
executing the warrant were objectively reasonable in their reliance on
the validity of the search warrant.  The court rejected petitioner's
argument that the officers could not have acted in good faith reliance
on the warrant, because the passage of five days between the issuance
of the warrant and its execution made it improbable that the drugs
sought under the warrant would still be found at the residence that
was to be searched under the warrant.

   2. Petitioner contends (Pet. 6-9) that the good faith exception to
the exclusionary rule does not excuse a delay in the execution of the
warrant when the officers obtain no additional information after the
warrant is issued.  Whatever the merits of petitioner's contention, it
is not presently ripe for review by this Court.  The court of appeals'
decision places petitioner in precisely the same position he would
have occupied if the district court had denied his motion to suppress.
 If petitioner is acquitted following a trial on the merits, his
contentions will be moot.  If, on the other hand, petitioner is
convicted and his conviction is affirmed on appeal, he will then be
able to present his contentions to this Court, together with any other
claims he may have, in a petition for a writ of certiorari seeking
review of the final judgment against him.  Accordingly, review by this
Court of the court of appeals' decision would be premature at this
time.  /*/

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

   KENNETH W. STARR

      Solicitor General

   JANUARY 1991

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