concurring and dissenting:

I concur in the result of the majority’s opinion as to the conviction of Margolis. I also concur in parts 1 and 2 of the opinion. I dissent from the majority’s reversal of Lomas’s conviction and the remand of his case. I write separately primarily to explain my disagreement with the majority’s unwarranted extension of United States v. Allard, 634 F.2d 1182 (9th Cir.1980) (Allard II), to the facts of this case.

I

The facts surrounding the seizure of room 2214 are substantially different from those in Allard II. There, two Drug Enforcement Agency agents made a warrantless entry into the hotel room of Berg. The agents originally went to the hotel room to “continue their investigation.” 634 F.2d at 1184 . After questioning Berg for five to ten minutes, however, the agents “decided that they had ‘probable cause to stay there,’ and that a search warrant should be obtained.” Id. The two agents, subsequently joined by two other agents, waited in the *896 hotel room for approximately two hours, while others sought and eventually obtained a warrant.

At a pretrial hearing, the district court suppressed evidence taken in the search. In the first appeal, United States v. Allard, 600 F.2d 1301 (9th Cir.1979) (Allard I), we held that in the absence of an exception to the warrant requirement, the warrantless entry was an illegal search which a later warrant could not retroactively authorize. Id. at 1303-04 . We held further, however, that despite the illegal entry into and occupation of the hotel room, the evidence recovered after issuance of the search warrant need not be suppressed if there were sufficient independent grounds for obtaining the warrant apart from information gathered in the course of the improper activity. Id. at 1305-06 . We remanded the case for the district court to determine whether information gathered during the illegal entry was a substantial factor in the decision to seek a warrant. Id. at 1306 .

On remand, the district court found that the government’s decision to seek a warrant was not tainted by any unlawfully acquired information and denied Allard’s motion to suppress. In a second appeal, we did not limit our inquiry to the reason for which we had remanded the case in Allard I. Stepping aside from that issue, we rejected the independent source rule we had clearly defined in Allard I and established a new test in which the government must prove “that it would have both independently discovered and successfully obtained the proffered evidence notwithstanding the illegal seizure.” Allard II, supra, 634 F.2d at 1187 . We justified this course of events by announcing that there had been a fuller development of the facts on remand, id. at 1183 n. 1, although we did not mention any specific fact not considered originally.

The majority assumes that Allard II is controlling in this case and thus concludes that the evidence seized from room 2214 must be suppressed unless the government can demonstrate the existence of exigent circumstances or meet its burden under Allard II. I would confine Allard II to its facts and hold that it does not apply to the facts here.

In Allard II, the decision to seek a warrant was not made until after the government agents had entered Berg’s hotel room. While the warrant was being applied for, four government agents remained in the room with Berg, not allowing him to leave or even go to the restroom alone. By contrast, in the instant case, the government began the process of obtaining a search warrant for room 2214 before instructing agent Wilma to secure the room to prevent destruction of evidence. The entry into the room was for the sole purpose of determining if anyone was inside who might destroy evidence. The entire procedure took less than thirty seconds, and the officers noticed nothing incriminating. Upon leaving the room, they locked the door from the outside so that it could be opened only with the assistance of hotel management. The room remained locked for a little over three hours, when it was searched pursuant to a warrant.

This critical difference in timing — agents deciding to procure a warrant and ordering the premises secured in the meantime to prevent destruction of evidence versus agents entering and securing the premises and then deciding to obtain a warrant- — appears to me to be a reasonable basis upon which to distinguish this case from Allard II. Allard II asserts the need for the rule it adopts because

634 F.2d at 1187 (emphasis added). The concerns present in Allard II are simply not present here, where it has been shown that the government had already initiated the process of obtaining a search warrant before the room was secured. The minimal *897 deterrent effect to be achieved by applying the exclusionary rule to the circumstances of this case does not justify the significant cost to society of removing evidence of guilt from the jury’s consideration. Instead, I would apply the independent source rule of Allard I, which is well engrained in the case law of both this court and the Supreme Court, and uphold the validity of the search. The district court properly applied that rule and denied the motion to suppress the evidence found in room 2214.

This court now stands alone in its interpretation of the fourth amendment and the exclusionary rule as it relates to this issue. At least four of the other circuit courts of appeal, as well as the New York Court of Appeals, have directly rejected Allard II. United States v. Segura, 663 F.2d 411 (2d Cir.1981); United States v. Beck, 662 F.2d 527, 529-30 (8th Cir.1981); United States v. Korman, 614 F.2d 541, 547 (6th Cir.), cert. denied, 446 U.S. 952 , 100 S.Ct. 2918 , 64 L.Ed.2d 808 (1980) (Korman); People v. Arnau, 58 N.Y.2d 27 , 444 N.E.2d 13 , 457 N.Y.S.2d 763 (1982); see United States v. Annese, 631 F.2d 1041, 1042 (1st Cir.1980). Korman is of particular interest in light of Allard IFs reliance on United States v. Griffin, 502 F.2d 959 (6th Cir.), cert. denied, 419 U.S. 1050 , 95 S.Ct. 626 , 42 L.Ed.2d 645 (1974) (Griffin). It would seem that Griffin is now of limited vitality in the Sixth Circuit because of Korman. This array of contrary authority suggests wisdom in not extending Allard II as the majority has done. Indeed, application of Allard II to facts similar to those before us has been specifically rejected by the highest court of the State of New York. See People v. Arnau, supra.

II

Even if Allard II were properly extended to the case before us, I would still affirm the conviction of Lomas and would hold that its “independent discovery” exception has been met. It appears clear that the government “would have both independently discovered and successfully obtained the proffered evidence notwithstanding the illegal seizure.” Allard II, supra, 634 F.2d at 1187 . As an example of how the government can meet this burden, we stated that “the government might attempt to prove that under the circumstances the evidence would not have been moved and its discovery would have been inevitable.” Id. n. 6.

I assume that this question is left open on remand because the majority instructs the district court that it need not suppress the evidence recovered from room 2214 if the government can demonstrate “that, had an illegal seizure not occurred, it would have recovered the incriminating evidence through some other route.” Maj. op. at 895.

I cannot be sure, however, whether the majority removes from consideration on remand the hotel receipt found in Margolis’s coat linking him to room 2214. I assume not because that would be clearly contrary to our recent application of Allard II in United States v. Lee, 699 F.2d 466, 469 (9th Cir.1982) (per curiam). The note in the instant case, like the footprints in Lee , were discovered prior to the illegality and thus need not be removed from the court’s consideration in determining whether “the evidence would not have been moved and its discovery would have been inevitable.” Allard II, supra, 634 F.2d at 1187 n. 6.

But I see no need to remand. I would hold that the record demonstrates the Al-lard II exception has been adequately proven. As the warrant was already applied for, I would hold that “the seizure made no practical difference,” Allard II, supra, 634 F.2d at 1187 , because the government “would have both independently discovered and successfully obtained the proffered evidence notwithstanding the illegal seizure.” Id. Moreover, the occupants of the room, having been arrested and in police custody, were hardly in a position to remove the evidence. See id. n. 6.

*898 III

In summary, we are not confronted here with officers attempting to circumvent the warrant requirement by making an illegal entry and seizing evidence with the intent of finding some post hoc justification for a search warrant. Nor are we presented with the situation of officers attempting to abuse the exigency exception by creating the exigency. We are merely confronted with an officer who jumped the gun slightly in a good faith attempt to prevent destruction of possible evidence in a hotel room registered to a suspect who had been validly arrested and was in police custody. The brief entry into the room to detect possible occupants revealed no incriminating evidence. The officers awaited the decision of a neutral and detached magistrate before conducting a thorough search of the room. Other courts faced with this issue have denied suppression. I agree with Judge Weick that, “[a]s appellate judges, we ought not to engage in hypertechnicalities which will hamstring capable and conscientious officers of the law endeavoring to properly perform their duties in protecting the public from harmful drugs.” Kor-man, supra, 614 F.2d at 547 . I therefore dissent from that portion of the majority’s opinion which extends Allard II to this case. In addition, I would not remand because even if Allard II were extended to this case, the record is sufficient to demonstrate that suppression is not warranted. I would affirm the convictions of both defendants.