United States v. Wayne Allard and Gordon Berg

The government appeals the district court’s pretrial suppression of evidence taken in the search of a hotel room. 18 U.S.C. § 3731 (1976). We affirm the trial court’s findings that the warrantless entry commenced an invalid search and that no exception to the warrant requirement applied.

However, because government agents obtained a warrant subsequent to their entry based on information they possessed prior to entry, we remand to the district court to determine (1) whether the evidence the government seeks to admit was in fact tainted by the illegal entry and (2) whether the affidavit in support of the warrant was sufficient to establish probable cause for the search.

FACTS

Douglas Richmond was arrested on March 10, 1978 for possession of cocaine. He was questioned by Special Agent Flores of the Drug Enforcement Administration (DEA). Richmond identified his source as Wayne Allard, who was to deliver to him another 12 ounces of the drug later that day. Armed with a warrant, Agents Cloke, Bagby, White and Williams went to Ri-chond’s residence at 1:30 p. m. and found Allard there. They arrested him, but found no cocaine.

*1303 Allard and Berg were registered in room 611 at a…

concurring:

I concur in the majority’s opinion. I wish to emphasize, however, that the trial court must be guided by the underlying remedial objectives of the exclusionary rule, when it considers the question of whether the evidence seized in Room 611 has been tainted by the agents’ illegal entry.

The affidavit presented by the government in support of its request for a search warrant did not contain any information obtained as a result of the agents’ presence in Room 611, and no search of the hotel room occurred until after the request for a warrant had been approved. Thus, the only connection between the agents’ warrantless entry and the subsequent discovery of the evidence appears to be the extent to which observations made following the unlawful entry served as additional motivation for obtaining the warrant. With this in mind, the majority opinion sets forth the primary question concerning taint in this case quite clearly: were the observations made by agent Bagby following his illegal entry a substantial factor in the ultimate decision to seek the warrant, or did those observations at most merely intensify the government’s investigation. Suppression would be appropriate in…

600 F.2d 1301 UNITED STATES of America, Plaintiff-Appellant, v. Wayne ALLARD and Gordon Berg, Defendants-Appellees. No. 78-2533. United States Court of Appeals, Ninth Circuit. July 17, 1979. Francis J. Diskin, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellant. Lawrence B. Finegold, John Henry Browne, Seattle, Wash., on brief; Timothy K. Ford, Sally Gustafson, Seattle, Wash., for defendants-appellees. Appeal from the United States District Court for the Western District of Washington. Before WRIGHT and GOODWIN, Circuit Judges, and SPENCER WILLIAMS, * District Judge. EUGENE A. WRIGHT, Circuit Judge: 1 The government appeals the district court's pretrial suppression of evidence taken in the search of a hotel room. 18 U.S.C. § 3731 (1976). We affirm the trial court's findings that the warrantless entry commenced an invalid search and that no exception to the warrant requirement applied. 2 However, because government agents obtained a warrant subsequent to their entry based on information they possessed prior to entry, we remand to the district court to determine (1) whether the evidence the government seeks to admit was in fact tainted by the illegal entry and (2)…