OPINION ON PETITION FOR REHEARING EN BANC
Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON and FAGG, Circuit Judges.
ORDER
The petition for rehearing en banc is denied by an equally divided court.
FAGG, Circuit Judge, dissenting, joined by BRIGHT and ROSS, Circuit Judges.
I dissent from the order denying rehearing en banc.
I offer two reasons for an en banc submission:
First, the panel, in deciding the case, has relied upon a proposition that has not been placed in issue or litigated in the state and federal trial courts: whether Officer Learning acted in bad faith in obtaining Williams’ statement concerning the location of the murdered child’s body.
Second, the case is one of significance in Iowa, involving a capital offense where the defendant has been convicted on two occasions by separate juries in different geographical locations within-the state.
Specifically, the following chronology supports an en banc hearing:
First, in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), the Supreme Court observed by footnote that the state might gain the admissibility of the murdered child’s body under a theory of inevitable discovery.
Second, taking the lead offered by the Supreme Court footnote, an inevitable discovery theory was presented to a state trial judge prior to Williams’ second trial in a motion to suppress. The prosecutor and defense counsel apparently viewed the contested theory as having only one prong, inevitable discovery of the body, and that was the issue presented to the trial judge. This would explain why the ruling of the trial judge made “no finding one way or the other on the question of bad faith” and why the ruling “does not even mention the [bad *1176faith] issue and seems to proceed on the assumption — contrary to the law later handed down by the Supreme Court of Iowa — that the State needed to show only that the body would have been discovered in any event”. Panel opinion at 1169. (Emphasis added). I am of the impression that a single issue, inevitable discovery, was involved in the suppression hearing and that the trial court participants should not be charged with anticipating that the case would turn on a good faith/bad faith dichotomy.
Third, after the second trial, Williams appealed to the Iowa Supreme Court. State v. Williams, 285 N.W.2d 248 (Iowa 1979). As a matter of first impression, the court adopted a two pronged inevitable discovery rule. Instead of recognizing that one of the prongs had been litigated in the trial court (inevitable discovery) and the other had not (absence of bad faith), and remanding the case to the trial court for a limited evidentiary hearing, the Iowa Supreme Court did exactly what our panel says it did, namely, in the absence of evidence -it ruled as a matter of law that Officer Learning had acted in good faith.
Fourth, when Williams’ petition for habeas relief was presented to District Judge Vietor, the issue formulation, submission, and resolution was the same as it had been in the state trial court: the question of inevitable discovery was at issue, the question of the officer’s bad faith was not.
Finally, as I read the panel opinion, I cannot satisfy myself that the issue of the officer’s good or bad faith has ever been the subject of an evidentiary hearing. If I am correct, then our panel is not in a position comfortably to find as a matter of law that Officer Learning acted in bad faith, and this court is obligated to consider whether or not some form of limited remand is in order before putting its final imprint upon the case.
For the above reasons I believe the petition for rehearing en banc should be granted.
Circuit Judge JOHN R. GIBSON also votes to grant the rehearing en banc.