¶1More fundamentally, the Second Circuit's disagreement is not with the New York Court of Appeals; it is with us. Mrs. Sykes unquestionably had a substantial opportunity to observe the burglar. We held in Wade that "the prior opportunity to observe the alleged criminal act" favors finding that an independent source exists. 388 U.S., at 241, 87 S.Ct. 1926. The Second Circuit held, to the contrary, that such an opportunity does not suggest the existence of an independent source in the circumstances of this case. Wade simply does not leave that option on the table.
¶2The Second Circuit's decision creates loopholes in both Pinholster and Wade In my view, the importance of this issue warrants review at this time. I respectfully dissent from the denial of certiorari.