                                            CORRECTED


            IN THE UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 00-31491
                                          Summary Calendar
                                          _______________



                                  UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                               VERSUS

                                           SHAWN BRYAN,

                                                             Defendant-Appellant.


                                    _________________________

                            Appeal from the United States District Court
                               for the Middle District of Louisiana
                                       (99-CR-20-ALL-B)
                                 _________________________
                                        October 29, 2001


Before JONES, SMITH, and EMILIO M.                      Shawn Bryan appeals his conviction of pos-
GARZA Circuit Judges.                                session of a firearm by a felon pursuant to 28
                                                     U.S.C. § 922(g)(1). The appeal raises ques-
JERRY E. SMITH, Circuit Judge:*                      tions under the Commerce Clause and the
                                                     Fourth Amendment. Finding both issues con-
                                                     trolled by precedent, and perceiving no
   *
     Pursuant to 5TH CIR. R. 47.5, the court has     reversible error, we affirm.
determined that this opinion should not be
published and is not precedent except under the
                                                        *
limited circumstances set forth in 5TH CIR. R.           (...continued)
                                   (continued...)    47.5.4.
                        I.                                  Near the completion of the search, Bryan
    Responding to a complaint of drug                    and his girlfriend arrived. One of the
trafficking, detecti ve Donnie Shirley                   detectives met him at the door and patted him
conducted surveillance of Bryan’s apartment              down. He then asked Bryan whether he had
and observed heavy nighttime foot traffic                anything on him, to which Bryan replied he
there. Shirley and three police detectives went          had “some pills.” The detective read them
to the apartment to investigate further. Shirley         their rights and asked whether there was any-
attempted to conduct a “knock and talk”.1                thing in their car. Bryan responded that there
Although there was a light on in the                     were a couple of pounds of marihuana and that
apartment, no one answered the door. Shirley             he owned the shotgun recovered from his
then peered though a window beside the door              bedroom.
and observed some marihuana bongs and a
silver platter containing marihuana stems and                                 II.
seeds.                                                      Bryan was charged in a two-count
                                                         indictment with possession of a firearm by a
   Half an hour later, three individuals, none           convicted felon and possession of a sawed-off
of whom was Bryan, arrived and entered the               shotgun. He moved to dismiss, arguing that
apartment. Shirley again approached the door             18 U.S.C. § 922(g) is unconstitutional as ex-
to knock, but before he could, he observed the           ceeding Congress’s Commerce Clause power.
three individuals about to exit. When they did           He also filed a motion to suppress, arguing
so, Shirley again observed the marihuana plant           that the search violated the Fourth
material and bongs through the door. Shirley             Amendment.
advised the individuals of the complaint and
asked to search the apartment, but consent                  The district court denied Bryan’s motion to
was denied because none of the three was a               dismiss and, after a second hearing on the mo-
tenant.                                                  tion to suppress, denied that motion. Bryan
                                                         then entered into a plea agreement, reserving
   The officers decided to get a search                  the right to appeal the denials of these
warrant. They then handcuffed one of the                 motions. On appeal, Bryan raises two issues:
individuals (later identified as “Blount”), took         the constitutionality of § 922(g) and the
the keys from his pocket, and secured the                lawfulness of the search.
apartment, conducting a “sweep” for persons
or weapons and to prevent the destruction of                                   III.
evidence. They retrieved a shotgun from Bry-                We review the constitutionality of statutes
an’s bedroom and secured the marihuana                   de novo. See United States v. Pierson, 139
bongs and plant matter. Shirley and one of the           F.3d 501, 503 (5th Cir. 1998). This circuit has
officers left to get a search warrant; once it           repeatedly upheld the constitutionality of
was obtained, Shirley radioed to the remaining           § 922(g).2 All of these decisions were handed
detectives to commence the search.

                                                            2
                                                              See United States v. Rawls, 85 F.3d 240, 242
   1
      This is a technique whereby the officer            (5th Cir. 1996); United States v. Kuban, 94 F.3d
attempts to contact the resident and advise him of       971, 973 (5th Cir. 1996); United States v. de Leon,
the complaint.                                                                                (continued...)

                                                     2
down after United States v. Lopez, 514 U.S.              second search is in any way premised on in-
549 (1995). Bryan’s argument in foreclosed               formation gained through the first search, the
by the precedent of this circuit and is therefore        rationale of the independent source rule is un-
without merit.                                           dercut, and the fruits of the second search
                                                         also must be excluded.
                       IV.
    The government contends that regardless of               This circuit has developed a two-pronged
the constitutionality of the original search, the        test to determine whether the first and second
independent source doctrine removes any po-              searches were independent enough to allow
tential taint from that search. Because this is-         evidence from the second search to be
sue may be dispositive, we address it before             admitted. First, the search warrant affidavit,
considering the legality of the warrantless ini-         when read without the tainted information,
tial search, which we assume arguendo was                must contain sufficient information to support
unlawful.3                                               the issuance of a warrant. Second, the illegal
                                                         first search cannot have prompted the officers
   The independent source doctrine allows the            to seek the warrant. See United States v. Has-
introduction of evidence that otherwise would            san, 83 F.3d 693, 697 (5th Cir. 1996). The
be excluded as tainted by an illegal search.             first prong is reviewed de novo; the second is
The rationale underlying the doctrine is that            reviewed only for clear error. See id.
evidence seized as the result of a properly-ob-
tained warrant should not be excluded merely                                    A.
because it was previously seized or seen                     As to the first prong, the record does not
pursuant to an illegal search. See Murray v.             contain the warrant affidavit, nor did the dis-
United States, 487 U.S. 533, 538-41 (1988).              trict court make written findings regarding the
                                                         basis for the warrant. Shirley, the affiant, of-
                                                         fered uncontradicted testimony that the
   The goal of the independent source                    affidavit contained only information obtained
doctrine is to avoid placing the government in           before entry into the apartment.
a worse position than it would have been in
absent the illegal search. See Nix v. Williams,             Bryan admits the existence of probable
467 U.S. 431, 443 (1984). That is, the                   cause based on Stanley’s observations made
perfectly legal search that follows on the heels         before entering the apartment. The first prong
of an illegal one should not be rendered void            of the Hassan test was satisfied in exactly the
because of the illegal search. Of course, if the         same way in Grosenheider v. United States,
                                                         220 F.3d 321, 327-28 (5th Cir. 2000) (warrant
                                                         based only on statements extrinsic to the illegal
   2
                                                         conduct). Absent any contention that the affi-
    (...continued)
                                                         davit relied on facts adduced after the entry in-
170 F.3d 494, 499 (5th Cir. 1999); United States
                                                         to the apartment, Grosenheider compels a
v. Jackson, 220 F.3d 635, 636 (5th Cir. 2000).
                                                         conclusion that the warrant was supported by
   3
    See United States v. Register, 931 F.2d 308,         probable cause unsullied by information from
311 (5th Cir. 1991) (refusing to consider the exi-       the initial entry.
gent circumstances argument because the
independent source inquiry was dispositive).

                                                     3
                        B.                               determine whether any theory of admissibility
    The second prong requires a separation of            supports the conclusion.5        That review
the two searches such that the officers’                 convinces us that the theory of independent
decision to obtain the warrant was                       source supports admission of the evidence.
unmotivated by anything they learned from the            There is enough indication in the record for us
improper search. See Hassan, 83 F.3d at 697.             to conclude that the court accepted the version
We review this finding only for clear error.             of the events relayed by the detectives. That
See id.                                                  finding is not clear error.
    Again, our review is hampered by the dis-
trict court’s failure to make written findings.                                V.
The Supreme Court and this court have                       One final wrinkle is presented by the
remanded to correct such deficiencies. See,              original seizure of the gun during the
e.g., Murray v. United States, 487 U.S. 533,             protective sweep. Because we are assuming,
543 (1988); Grosenheider, 220 F.3d at 328.               arguendo, that this sweep was illegal, the
                                                         seizure of the gun was tainted. The second
   Both of these cases, though, are distin-              seizure of the gun stemming from the legal
guishable. In Murray, the court remanded be-             search, however, removes any taint from the
cause the inference drawn from the findings              original seizure. See Grosenheider, 220 F.3d
the district court did make was not strong               at 330 n.10; Murray, 487 U.S. at 342.6 The
enough to avoid remand. See Murray, 457                  gun, even though seized as part of the original
U.S. at 543. In Grosenheider, the court mere-            protective sweep, is admissible under the
ly repeated and followed the command of                  independent source doctrine.
Murray,4 which is for the district court to
make a finding, but not necessarily in writing.             AFFIRMED.
“[W]hat counts is whether the actual illegal
search had any effect in producing the
warrant.” See Murray, 457 U.S. at 542 n.3.
Although we do not endorse the district
court’s methodology, the crucial question is
whether the court made a determination that
the warrant would have been obtained
regardless of what was discovered after entry
into the apartment.
                                                            5
   Where a district court does not make                      See United States v. Smith, 543 F.2d 1141,
written findings, we review the record to                1145 (5th Cir. 1976); United States v. Montos,
                                                         421 F.2d 215, 220 n.1 (5th Cir. 1970).
                                                            6
                                                               Although the Court in Murray spoke of the
   4
     Cf. United States v. Blount, 123 F.3d 831,          difficulty of proving that one seizur e is genuinely
839 n.6 (5th Cir. 1997) (en banc) (finding a             independent of the other, it gave no guidance as to
remand unnecessary where no reasonable fact              what constitutes this separation. Where, as here,
finder could have concluded the warrant was issued       the gun was not the object of the decision to seek a
based on the information obtained in the illegal         warrant, there is no difficulty in finding adequate
search).                                                 separation to uphold the second seizure.

                                                     4
