OPINION ON PETITION FOR REHEARING
The Court has before it the petition for rehearing filed by the appellee, directed to the panel that heard this appeal. The petition is denied.1
We deem it appropriate to add a few limited comments with respect to some of the arguments made for the first time in the petition for rehearing.
1. The State argues that the inevitable-discovery exception to the rule excluding evidence obtained in violation of the Sixth *1174Amendment should be available to it even if the police conduct in this case was in bad faith. (It does not argue that this Court’s holding, on the record presently before it, that the State had not proved a lack of bad faith, was erroneous.) As already indicated in our opinion filed January 10, 1983, Williams v. Nix, 700 F.2d 1164 (8th Cir.1983), this argument is contrary to an express concession made by the State at the oral argument before us.2 In the course of the oral argument, counsel for the State stated, Tr. 20, that “I really don’t argue with the application of the good faith rule.” A few minutes later, a member of the Court brought the matter up again, and the following colloquy occurred:
Judge Arnold: Let me go back a minute, Mr. McGrane, and read to you what I wrote down that you said a minute ago. I want to see if you really meant this. “I really don’t argue with the application of the good faith rule.”
Mr. McGrane: Well, I think I’m in a position here where I’m trying to argue for the Iowa Supreme Court’s dissertation on the exclusionary rule. I think it’s an exceptional analysis and dissertation on the rule and they apply the good faith rule. So I think that the lack of bad faith is where it would hurt us, but I think the lack of bad faith rule should be included. Does that answer the question, I hope.
Judge Arnold: Yes, sir, it does.
Mr. McGrane: I’d like to leave it in there and I’d like to have this Court find that in fact there was a lack of bad faith.
Both because of this concession, and because to hold otherwise would impermissibly reduce the deterrent effect of the exclusionary rule, see our previous opinion at p. 1169, n. 5, we adhere to our holding that the State, in order to avail itself of the inevitable-discovery exception, should have to prove by a preponderance of the evidence that the police did not act in bad faith.
2. The State also suggests that even if lack of bad faith must be shown, the appropriate standard is objective, not subjective. That is, was the conduct of the police objectively reasonable? Again, we adhere to our previous view that the important question is the state of mind of the police officer at the time that the conduct later held to be unconstitutional occurred. Since the purpose of the exclusionary rule is to deter unconstitutional conduct, exceptions to the rule should not be permitted unless the police honestly believed that they were not behaving unconstitutionally. Again, an exchange between the bench and counsel for the State during oral argument is relevant.
Judge Henley: Is it a question of what he did or what he thought he did?
Mr. McGrane: I think it’s what he
thought he was doing. That’s good faith.
Tr. 21. See also Tr. 18 (Mr. McGrane: “That’s not bad faith because he thought the way he was doing it was legal.”)
3. Finally, the State argues that to impose a good-faith requirement at this point in the case is unfair to it. At the time of the hearing on the motion to suppress before the second trial, it says, no one knew that lack of bad faith was relevant, and therefore the State made no attempt to prove this element of the inevitable-discovery exception. It is unfair, the argument runs, for this Court now to hold the conviction invalid on the basis of an issue as to which the State has never been allowed to present proof. The suggestion is made that some kind of remand take place for a hearing, either in the District Court or in the state courts, at which the State would be allowed to attempt to show that no bad faith was involved.
We respectfully disagree with this suggestion for several reasons. The bad-faith question came into the case, in so many words, when the Supreme Court of Iowa decided the appeal from the second convic*1175tion. It was the Supreme Court of Iowa, not this Court, that brought the bad-faith issue into the case. It is the opinion of the Supreme Court of Iowa that first pointed out the crucial nature of the issue. No complaint was made by the State at that time that a new issue had been unfairly raised. The opinion of the District Court also mentions the absence of bad faith as one element of the inevitable-discovery doctrine, and again neither side claimed that the question was being unfairly injected into the case.
On the appeal to this Court, both sides briefed the good-faith issue. The State’s brief did not argue that it had never had a chance to prove good faith. Nor did it argue that the issue had not been raised in the District Court. It claimed instead, relying on the rationale of the Supreme Court of Iowa, that it had proved good faith. The State did not ask for another chance to satisfy the good-faith prong of the inevitable-discovery doctrine. Then, at the oral argument, the issue became sharper still. As the portions of the oral argument already quoted make clear, there was no suggestion by the State that this Court should not rule on the good-faith issue, or that some kind of additional evidentiary hearing should be held. Indeed, counsel for the State went so far as to say that “I’d like to leave it [the question of bad faith] in there and I’d like to have this Court find that in fact there was a lack of bad faith.”
In these circumstances, we cannot agree that fairness requires that the State be given a new chance to show that its agent did not act in bad faith. At the time of the hearing on the motion to suppress, the State was the proponent. It had the burden of proof. It was offering evidence that had been obtained in a way that the Supreme Court of the United States had held unconstitutional. It was given an evidentiary hearing on the issue of admissibility. If,, through a mistake of law, it failed to make its case, that should be the end of the matter. It is as if the State had failed to prove one element of the crime, and later argues that it should be given another chance.
The petition for rehearing is denied.
. Appellee also filed a petition for rehearing en banc, which is being denied in a separate order entered today.
. A transcript of the tape of the oral argument has been prepared, and copies have been furnished to counsel. The Clerk is directed to file the transcript as part of the records of this case.