(dissenting).

In my view the convictions should be set aside because as to both appellants the government developed its case on the basis of information obtained from Toy at his home immediately after enforcement officers made an illegal entry into that home. The fact that the informa•tion was derived from voluntary statements made by Toy at that time and place, rather than as a result of the 'seizure Of physical objects (Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 ) or observations made by law enforcement officers while illegally on the premises (McGinnis v. United States, 1 Cir., 227 F.2d 598 ), seems to me immaterial.

As I understand it, the test of the “fruit of the poisonous tree” doctrine (Nardone v. United States, 308 U.S. 338 , 60 S.Ct. 266, 268 , 84 L.Ed. 307 ) is whether the government seeks to avail itself of knowledge which it would not have had but for the lawless conduct of enforcement officers. For all that is shown in this record, the government would not have known of Johnnie Yee and so built its case had not an illegal entry of Toy’s home been effected.

The guarantees of the Fourth Amendment are too fundamental to warrant hair-splitting distinctions between information based on physical evidence ob *373 tained or observations made at the scene of an illegal entry and information based on voluntary statements by the defendant at the scene of the illegal entry. The chances are always pretty good that law enforcement officers can obtain valuable leads during the course of adroit questioning. If such leads are not to be regarded as contaminated harvest, the “fruit of the poisonous tree” doctrine will no longer serve its designed purpose of discouraging Fourth Amendment violations.

I realize that a contrary view was expressed in Smith v. United States, 103 U.S.App.D.C. 48 , 254 F.2d 751 , one judge dissenting. But the force of that pronouncement is undermined by the fact that it was given only as an alternative ground for affirmance, the court having already determined that the arrest and search were legal. I find much more convincing the contrary view expressed by the same court speaking through Circuit Judge (later Chief Justice) Vinson in Nueslein v. District of Columbia, 73 App.D.C. 85 , 115 F.2d 690 .