                   UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT


                            __________________

                               No. 95-20329
                            __________________



     UNITED STATES OF AMERICA,

                                              Plaintiff-Appellant,

                                  versus

     TUNJI ADEWAL HASSAN, also known as
     Tunji A. Hassan; BABATUNDE M. ODUNTAN;
     and AYODEJI OLUSOLA BABATOLA,
     also known as Ayodeji O. Babatola,

                                              Defendants-Appellees.

           ______________________________________________

      Appeal from the United States District Court for the
                   Southern District of Texas
         ______________________________________________

                                May 9, 1996


Before GARWOOD, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

PER CURIAM:

     The   Government   brings    this   interlocutory      appeal    from   a

district   court   order     suppressing    evidence   in     the    criminal

prosecution   of   Tunji    Hassan,   Babatunde    Oduntan,    and    Ayodeji

Babatola (collectively, "Defendants") for possession of heroin with

the intent to distribute and conspiring to commit that offense.

See 21 U.S.C. §§ 841(a)(1), 846.           We reverse and remand to the

district court for proceedings not inconsistent with this opinion.
                                   BACKGROUND

       On April 3, 1994, United States Customs agents arrested Cheryl

Washington at Houston Intercontinental Airport after discovering

that   she   was   carrying      approximately    five    pounds   of    heroin.

Washington identified Hakeem Lawal as the individual who recruited

her to smuggle the heroin.         After agents arrested Lawal on August

10, 1994,    he    agreed   to   cooperate   with   the    investigation     and

implicated the Defendants in the heroin scheme.             He also agreed to

take agents Chuck Mazzilli, Mark Klemm, and Shawn McElroy to the

Defendants' apartment.

       Lawal, the agents, and several Houston police officers arrived

at the apartment complex at approximately 11 p.m. Lawal called the

apartment and spoke briefly with Oduntan so that the agents could

ascertain whether anyone was there.              The agents and Lawal then

climbed the stairs to the Defendants' apartment.                   Agent Klemm

peeked through the edge of the miniblinds, which were down, to

determine whether any of the occupants were armed.                 He observed

Hassan and Oduntan at the dining room table pouring a white

substance that appeared to be heroin through a strainer.                The table

was covered with sheet pans filled with the substance.                     Agent

Mazzilli then made a similar observation through the miniblinds.

       At that point, Klemm yelled to the police officers waiting

downstairs to come up to the apartment.             Mazzilli knocked on the

door; as the Defendants approached it, he yelled, "police."                Agent

Klemm then saw the Defendants move back toward the table. Mazzilli

kicked open the door and the agents entered the apartment and


                                       2
arrested the Defendants.     The apartment was not searched until a

warrant was obtained the next day.

     The Defendants subsequently moved to suppress all evidence

seized pursuant to the warrantless entry.       The district court

suppressed the evidence after concluding that exigent circumstances

did not exist to justify the agents' warrantless entry.1        The

Government filed a motion for reconsideration, arguing for the

first time that the independent source doctrine justified the

admission of the evidence.    The district court concluded that the

doctrine was inapplicable and refused the Government's request for

another hearing to develop evidence on independent source.      The

Government timely appealed.



                              DISCUSSION

     The Government contends that the district court erred in

concluding that the independent source doctrine was inapplicable to

the instant cause.   The Supreme Court has held that where evidence

initially unlawfully seized is subsequently obtained pursuant to a

search warrant based on independent information, the independent

source doctrine applies not only to evidence seen for the first

time during the warrant-authorized search, but also to evidence

seen in plain view at the time of the illegal warrantless search.

See Murray v. United States, 487 U.S. 533, 541-42, 108 S. Ct. 2529,




    1
          The Government does not challenge on appeal the district
court's ruling on exigent circumstances.

                                  3
2535-36, 101 L. Ed.2d 472 (1988).2

         The Government thus contends that the fact that the heroin

was observed and smelled during the illegal warrantless entry does

not render it inadmissible if it was also obtained pursuant to an

independently-acquired search warrant.     See id., 108 S. Ct. at

2535-36; United States v. Restrepo, 966 F.2d 964, 969 (5th Cir.

1992), cert. denied, 506 U.S. 1049, 113 S. Ct. 968, 122 L. Ed.2d

124 (1993) (noting that evidence discovered during a violation of

the Fourth Amendment is admissible if it is also discovered through

an independent source).

     The Defendants initially assert that the Government waived its

independent source argument by not raising it in the district court

until the motion for reconsideration.       See Steagald v. United

States, 451 U.S. 204, 209, 101 S. Ct. 1642, 1646, 68 L. Ed.2d 38

(1981) (concluding that the government may waive error by failing

to raise issues in a timely fashion during litigation); Giordenello

v. United States, 357 U.S. 480, 488, 78 S. Ct. 1245, 1251, 2 L.


     2
          The Court recognized that the rationale for the
independent source doctrine involved a balancing of interests:

     [T]he interest of society in deterring unlawful police
     conduct and the public interest in having juries receive
     all probative evidence of a crime are properly balanced
     by putting the police in the same, not a worse, position
     that they would have been in if no police error or
     misconduct had occurred. . . .      When the challenged
     evidence has an independent source, exclusion of such
     evidence would put the police in a worse position than
     they would have been in absent any error or violation.

Murray, 487 U.S. at 537, 108 S. Ct. at 2533 (quoting Nix v.
Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 2509, 81 L. Ed.2d 377
(1984)).

                                  4
Ed.2d 1503 (1958) (holding that the government could not raise new

theory on appeal to Supreme Court because it failed to give the

lower courts an opportunity to rule on the theory); United States

v. Musa, 45 F.3d 922, 925 (5th Cir. 1995) (noting that issues not

raised will not be considered on appeal); McRae v. United States,

420 F.2d 1283, 1285-89 (D.C. Cir. 1969) (concluding that the

government is not entitled to reconsideration by judge during trial

after it has lost on a pretrial suppression motion).3

     We   decline   to   conclude   that   the   Government    waived   the

independent source argument by not raising it until the motion for

reconsideration.    The cases the Defendants rely on involved issues

that were argued for the first time on appeal.          The Government,

however, presented the independent source issue at a time when the

district court possessed the ability to rule on it.           Clearly, the

Government did not waive its argument on appeal by waiting until

the motion for reconsideration to advance it.

     The Government's failure to raise the issue during the first

suppression hearing may be considered, however, in determining

whether the district court abused its discretion in refusing to

     3
          McRae is the only case the Defendants cite involving a
motion to reconsider before the district court. The case, however,
concerned the issue of whether the Government can move to reopen
the suppression ruling during the trial when the district court has
previously ruled against the Government in a pretrial hearing (at
the time, the Government could not seek an interlocutory appeal of
an adverse suppression ruling). McRae, 420 F.2d at 1285. Thus,
McRae was in an entirely different procedural posture than the
instant cause in which the Government moved for reconsideration
pretrial. Moreover, we have limited McRae to situations in which
a judge at trial reverses a pretrial suppression ruling entered by
a different judge. See United States v. Scott, 524 F.2d 465, 467
(5th Cir. 1975).

                                    5
reopen the hearing to allow the Government to present evidence on

independent source.       See United States v. Walker, 772 F.2d 1172,

1177 (5th Cir. 1985); see also United States v. Hobbs, 31 F.3d 918,

923 (9th Cir. 1994).      The district court denied the motion because

"[t]here was ample time to prepare for the previous hearing and the

Court spent considerable time reviewing the facts of this case.                No

new   information   has    been   presented    that      would    justify    oral

argument."

      We agree with the Defendants that the district court did not

abuse its discretion in denying the Government's request to present

additional evidence on the independent source doctrine.                      This

conclusion, however, does not end our inquiry because the district

court did more than simply refuse to reopen the evidence; it

actually ruled on the merits of the Government's argument by

concluding that the independent source doctrine was inapplicable

because the agents lacked sufficient facts to obtain a warrant in

the absence of the illegal entry.

      Because the district court considered and ruled on this issue,

we must review whether it erred in determining the applicability of

the   independent   source   doctrine.        As   the    Third    Circuit    has

observed:

      Generally, the denial of a motion for reconsideration is
      reviewed for an abuse of discretion. However, because an
      appeal from a denial of a motion to reconsider
      necessarily raises the underlying judgment for review,
      the standard of review varies with the nature of the
      underlying judgment. Where . . . the underlying judgment
      was based in part upon the interpretation and application
      of a legal precept, our review is plenary. But to the
      extent that the district court's order was based on its
      factual conclusions, we review under a "clearly

                                     6
      erroneous" standard.

United States v. Herrold, 962 F.2d 1131, 1136 (3d Cir.), cert.

denied, 506 U.S. 958, 113 S. Ct. 421, 121 L. Ed.2d 344 (1992)

(citations omitted).

      The   district       court   must   perform    a    two-part   analysis    to

determine whether the independent source doctrine applies:                      (1)

does the warrant affidavit, when purged of tainted information

gained    through    the    initial   illegal   entry,      contain    sufficient

remaining facts to constitute probable cause ("probable cause");

and (2) did the illegal search affect or motivate the officers'

decision to procure the search warrant ("effect of the illegal

entry").    See Restrepo, 966 F.2d at 966.           This Court has addressed

the proper standard of review in assessing each prong.                          The

probable cause prong involves a question of law that we review de

novo.4    Id. at 971; see United States v. Phillips, 727 F.2d 392,

394-95 (5th Cir. 1984) (concluding that a reviewing court may

independently consider the sufficiency of the evidence in examining

the   district      court's    determination    of       probable    cause).     In

contrast, the "effect of the illegal entry" prong involves a

factual determination, Restrepo, 966 F.2d at 972, that should be

reviewed under the clearly erroneous standard.                See United States


      4
          We note that the Supreme Court recently granted
certiorari on the related issue of whether appellate courts should
apply a de novo standard of review to the district court's
determination of reasonable suspicion to stop and probable cause to
search in cases involving warrantless searches. See United States
v. Ornelas-Ledesma, 16 F.3d 714, 719 (7th Cir. 1994), cert.
granted, Ornelas v. United States,   U.S. , 116 S. Ct. 417, 133 L.
Ed.2d 334 (1995).

                                          7
v. Andrews, 22 F.3d 1328, 1333 (5th Cir.), cert. denied,                  U.S.   ,

115 S. Ct. 346, 130 L. Ed.2d 302 (1994) (concluding that a district

court's factual findings on a motion to suppress should be reviewed

only for clear error).

     In the instant cause, the main dispute between the parties

involves    their    characterizations          of    the     district    court's

determination that "[b]ut for the illegal entry, the officers

probably would not have had sufficient evidence to obtain the

warrant."    The Government asserts that this finding concerns the

probable cause prong, while the Defendants argue that it pertains

to the factual issue of the effect of the illegal entry.

     Although the language is somewhat ambiguous, the district

court's order appears to involve a "probable cause" determination

rather than an "effect of the illegal entry" analysis.                        The

district    court   focuses   on   the       fact   that    sufficient   evidence

"probably" would not have existed to allow the officers to obtain

a search warrant if the illegal entry had not occurred.                      The

order's language does not concern "whether information gained

through the illegal search influenced or motivated the officers'

decision to procure a warrant."                Restrepo, 966 F.2d at 971.

Nothing in the district court's brief analysis indicates that it

ever considered whether the Customs agents were motivated to seek

the warrant by the sights and smells they observed upon entering

the Defendants' apartment.         We conclude that the district court's

ruling involved the probable cause prong of the independent source

doctrine.    See id.


                                         8
      Under   the   probable    cause   prong,        this   Court   reviews   the

district court's ruling by excising from the warrant affidavit

those facts that were gleaned from the illegal search and then

examining     whether     the   affidavit's         remaining   information     is

sufficient to constitute probable cause.               See id. at 966.    If the

warrant affidavit, expunged of the tainted information, still

contains sufficient evidence, then the probable cause prong is

satisfied.     Id. at 971.

      When those facts and conclusions that would not have been

available but for the illegal entry into the Defendants' apartment

are   excluded,     the    affidavit        still    contains    the   following

information:    Cheryl Washington's arrest and her identification of

Lawal as the individual who recruited her to smuggle heroin;

incriminating phone conversations between Lawal and Washington;

Lawal's arrest and offer to cooperate with Customs agents; Lawal's

admission that he recruited Washington to smuggle heroin for the

Defendants; Lawal's identification of the Defendants' apartment;

the agents' observation through the miniblinds of the Defendants

cutting heroin at the dining room table;5 and after one agent

      5
          Relying on the "plain view" rule, the district court
concluded that the officers had a legal right to look through the
edge of the closed miniblinds into the Defendants' apartment. See
United States v. Jackson, 588 F.2d 1046, 1052-53 (5th Cir.), cert.
denied, 442 U.S. 941, 99 S. Ct. 2882, 61 L. Ed.2d 310 (1979)
(holding that officers did not violate the Fourth Amendment by
listening to the accused's conversation through a motel wall); Gil
v. Beto, 440 F.2d 666, 667 (5th Cir. 1971) (concluding that
officers did not violate Fourth Amendment by looking through motel
room window because the "officers [were] lawfully on the premises
and merely observe[d] what was in plain view"). Because this is
the Government's interlocutory appeal, the Defendants do not
complain of the district court's finding. We assume for purposes

                                        9
yelled, "police," the Defendants turned back towards the table in

panic.

     This independently-acquired information provided sufficient

evidence to establish probable cause for the issuance of a search

warrant.    See id. at 971.   In addition to tips from informants, the

Customs agents actually observed the Defendants cutting and sifting

a large amount of heroin.      We conclude as a matter of law that the

expurgated    affidavit    sufficiently      established     probable    cause.

Therefore, the district court erred in finding the independent

source doctrine inapplicable based on a lack of probable cause.

     The determination of probable cause, however, does not end the

analysis.      The   district       court    must     also   examine    whether

"information    gained    through    the    illegal    search   influenced    or

motivated the officers' decision to procure a warrant."                Id.6


of this opinion that the district court correctly concluded that
the agents had a legal right to look through the Defendants'
miniblinds and that the heroin was in plain view.
    6
          The Defendants rely on United States v. Dawkins, 17 F.3d
399 (D.C. Cir. 1994), in arguing that for this second prong, "what
counts is whether the actual illegal entry had any effect in
producing the warrant." Id. at 408 (quoting Murray, 487 U.S. at 542
n.3, 108 S. Ct. at 2536 n.3).      They assert that the Court in
Dawkins rejected the independent source doctrine because it was not
convinced that the illegal entry did not affect the production of
the warrant, and that we should likewise reject the Government's
argument on this issue.
     Despite the factual similarity between the two cases, the
Defendants' reliance on Dawkins is misplaced. Citing language in
Murray that the independent source doctrine is not applicable if
information obtained during the entry was presented to the
Magistrate and affected his decision to issue the warrant, the
Dawkins Court concluded that evidence obtained during a later
search pursuant to a warrant had to be suppressed because
"information derived from the illegal search played a large role in
the magistrate's decision." Id.
     We have rejected previously, however, the contention that

                                      10
       Although both parties argue that we should decide the issue of

the "effect of the illegal entry," we believe that a remand of this

factual prong to the district court is appropriate.              See id. at 972

(remanding    on   the   effect   of   the     illegal   entry   issue    because

motivation involves a question of fact).              The district court may

wish   to   consider     such   factors   as    the   precise    nature   of   the

information acquired after the illegal entry, the importance of

this information compared to all the information known to the

agents, and the time at which the officers first evinced an intent

to seek a warrant.        See id.; United States v. Register, 931 F.2d

308, 311 (5th Cir. 1991) (noting that the officer began preparing

warrant affidavit before illegal entry occurred).                In determining



Murray requires the reviewing court "to consider the actual effect
of the illegally-acquired information in [the] warrant affidavit on
the decision of this particular magistrate judge to issue the
warrant."   Restrepo, 966 F.2d at 969.     In concluding that the
effect on "the [magistrate's] decision to issue the warrant" was
encompassed within the probable cause prong, we reaffirmed our pre-
Murray holdings that "inclusion of illegally-acquired information
on a warrant affidavit does not invalidate the warrant if the
affidavit's other averments set forth probable cause." Id. at 970.
     Citing Herrold, a Third Circuit decision reversing a district
court's ruling that the inclusion of illegally obtained evidence in
the affidavit affected the magistrate's decision to issue a
warrant, we determined that an individualized inquiry of the effect
on the magistrate is not required. Id. (citing Herrold, 962 F.2d
at 1141-42, for the proposition that "the fact that an application
for a warrant contains information obtained through an unlawful
entry does not per force indicate that the improper information
"affected" the justice's decision to issue the warrant and thereby
vitiate the applicability of the independent source doctrine").
Instead, we examine whether the tainted information affected the
magistrate's decision by assessing whether the affidavit, purged of
all tainted information, still contains sufficient facts to
establish probable cause.     Id.   We do not perform a separate
inquiry of the effect on the magistrate, as the D.C. Circuit did in
its analysis.     Dawkins, 17 F.3d at 408.       Thus, Dawkins is
inapposite to the instant cause under the law of this circuit.

                                       11
motivation, the district court may also examine the reasons why the

officers decided to include the illegally-obtained information in

the affidavit.



                            CONCLUSION

     We   reverse   the   district    court's   conclusion   that   the

independent source doctrine is inapplicable and remand the case to

the district court for a determination of whether the agents were

influenced or motivated to procure a warrant by information they

obtained through the illegal entry.7

REVERSED AND REMANDED.




     7
          It is within the district court's discretion to decide
whether it wishes to reopen the hearing on this issue or to simply
examine the record from the first suppression hearing for evidence
of the agents' motivation; except, the district court shall not
grant relief on the Government's motion for reconsideration without
affording the Defendants an opportunity to present evidence on the
second prong as stated in Restrepo.

                                 12
