                                   United States Court of Appeals,

                                             Fifth Circuit.

                                            No. 91–6017.

                         UNITED STATES of America, Plaintiff–Appellant,

                                                   v.

                 Cesar Augusto RESTREPO and Luis Pulido, Defendants–Appellees.

                                            July 21, 1992.

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

Before JOHNSON, GARWOOD, and WIENER, Circuit Judges.

          WIENER, Circuit Judge:

          This suppression of evidence case, implicating the independent source doctrine, arises from

the warrantless "security sweep" of the residence of Defendant–Appellee Luis Pulido and the

subsequent search of that same residence pursuant to warrant. Plaintiff–Appellant United States

appeals the district court's decision to exclude from Pulido's trial all evidence from the second search

as tainted by the initial, illegal sweep. The government insists that the proper approach is to excise

from the warrant affidavit those facts that were gleaned from the illegal search, and then to consider

whether the affidavit's remaining information is sufficient to constitute probable cause. Agreeing with

the government that this is the correct methodology, we determine as a matter of law that the warrant

affidavit, purged of information gained t hrough the initial search, nevertheless contains sufficient

remaining facts to constitute probable cause for the issuance of the search warrant. Additionally,

however, we conclude that Murray v. U.S.,1 requires the district court to determine—independent

of our determination that the expurgated warrant affidavit provided probable cause for the issuance

of the warrant by the magistrate judge—whether the illegal search affected or motivated the officers'

decision to procure the search warrant. Because the district court did not undertake this required

analysis, we remand to that court for the appropriate findings of fact and conclusions of law. Lastly,

as to Defendant–Appellee Cesar Augusto Restrepo, we ask the district court to consider again its

   1
       487 U.S. 2529, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).
decision to exclude under Federal Rule of Evidence 403 evidence from the search of Pulido's

residence.



                                    I. FACTS AND PROCEEDINGS

A. SURVEILLANCE AND SECURITY SWEEP

       On July 2, 1991, Customs Officer John Wooley received a confidential tip that narcotics

trafficking was being conducted at a residence at 8996 Imogene, Houston, Texas (Imogene). Later

that day, Wooley and other officers established surveillance on Imogene. A resident of the

neighborhood, who somehow perceived that surveillance was being conducted, told one of the

participating officers that many different cars arrived at Imogene, pulled into the garage, and then

departed—a pattern, the government informs us, typical of drug trafficking.



       Wooley obtained information from Houston Light & Power (HL & P) that electric service had

been established at Imogene on January 14, 1991, were listed to Luz Irene Pina (Pina), and named

Sally Flores (Flores) as a reference. Wooley discovered that Pina had also established electric service

at a residence at 7254 Regency Square Court, Houston (Regency), on June 14, 1991. Flores was

listed as a reference at Regency.



       On the morning of July 3, 1991, officers established surveillance on Regency, and resumed

it on Imogene. At about 10:20 a.m., officers watched as Restrepo arrived at Regency in a blue

Toyota and picked up Pulido. Officers followed the blue Toyota to a strip mall where they observed

Pulido making and receiving calls on a public telephone. Wooley believed that Pulido was making

calls to digital pagers and receiving responding calls from the possessors of the pagers, also a pattern

of drug trafficking, according to the government.



       Restrepo left with Pulido after about eighteen minutes. The officers followed them to another

strip mall, at which Pulido once again made and received calls at a public telephone. On this
occasion, Pulido was observed with a large wallet and black ledger book in which he made notations.

Restrepo and Pulido departed after about sixteen minutes.



       Officers next followed the pair to a residence at 13901 Hollowgreen, Houston (Hollowgreen).

After remaining inside Hollowgreen for a short time, Pulido and Restrepo departed at about 11:30

a.m., once again in the blue Toyota. Wooley reports that Restrepo drove the blue Toyota below the

speed limit after leaving Hollowgreen, perhaps, speculates the government, in an attempt to expose

surveillance. At this time, officers observed Pulido using a cellular telephone while riding in the car

with Restrepo.



       Officers followed Restrepo and Pulido to a Home Depot store. At this location, Pulido was

once again observed making calls at a pay telephone. Restrepo, in the meantime, drove away in the

blue Toyota, apparently to rent video tapes. Shortly after 12:30 p.m., he returned to the Home Depot

store and picked up Pulido. Officers then followed the blue Toyota back to Regency, where Pulido

was dro pped off. From there the officers followed Restrepo in the blue Toyota, terminating their

surveillance on Regency.



       Restrepo, shadowed by the surveillance team, went to a Dunkin' Donut shop. Two officers

entered, informed Restrepo that they were conducting an investigation, and asked Restrepo if he

would speak with them outside. Restrepo agreed. When officers asked where he lived, Restrepo

responded that he lived in Queens, New York, but could not remember the exact address. Restrepo

also stated that the blue Toyota had been loaned to him when he arrived in Houston, but when asked

by whom, he could not recall.



       Agent Wooley asked Restrepo about his connection with the man at Regency. Restrepo

responded that he did not know him. When Restrepo was asked the name of the man at Regency,

he responded "Enrique"; later, however, Restrepo stated that the man at Regency is named "Pedro."
Restrepo told the officers that he and the man from Regency went to the Home Depot store and no

other locations. When officers told Restrepo that he and the other man (who they later learned was

Pulido) had been observed at Hollowgreen, Restrepo stated that he did, in fact, go to Hollowgreen.



       Wooley then asked Restrepo for permission to search the blue Toyota. After some initial

reluctance, Restrepo consented. The officers' search produced the black ledger, previously seen with

Pulido, and the wallet that contained $688.00 in small denominations. Entries in the ledger, Wooley

reports, are consistent with narcotics transactions. A drug-sniffing dog "alerted" to the wallet,

indicating, the government tells us, the odor of narcotics. Restrepo was arrested and taken to jail.



       The officers thereupon returned to Regency "to interview Pulido." At that point, there had

been a break of about fifteen minutes in the surveillance on Regency, the time it took the officers to

follow, interrogate, and arrest Restrepo. A woman, later identified as Mayra Cata Garcia, answered

the officers' knock. She was told by the officers that they had information that narcotics were being

dealt from her residence. Garcia responded that she and her children were the only persons in the

residence at that time. When asked, Garcia refused to permit the officers to search the residence,

stating that she had arrived only six days earlier and was merely visiting.



       Despite Garcia's unambiguous refusal to allow the search, the officers entered and searched,

justifying their warrantless, consentless search as a "security sweep." Pulido was located upstairs,

"hiding" in the bathroom of the master bedroom. According to the government, Pulido invited the

officers to search the house at that time, but Agent Wooley declined. But according to Pulido, he

did not consent to search. In any event, Pulido, Garcia, and the two children were detained in the

living room for four hours while Wooley sought and obtained a search warrant. The officers did not

consider that Pulido was under arrest during that period.



       Immediately after leaving Regency, Wooley prepared an affidavit to support his application
for warrants to search Regency, Hollowgreen, and Imogene. Wooley's affidavit for the Regency

warrant contained the following information: a description of his (Wooley's) experience with

narcotics investigations; the confidential informant's tip about narcotics trafficking at Imogene; the

neighbor's information about comings and goings at Imogene; the HL & P information linking

Imogene (the suspected stash house) and Regency; the surveillance team's observations of Restrepo

and Pulido ; evidence seized from the blue Toyota; and information acquired as a result of the

"security sweep" of Regency.



       The portion of Wooley's affidavit containing information acquired as a result of the "security

sweep" states:



       At 1:45 p.m., Agents went to 7254 Regency Square Court to talk with the occupants. At that
       address a Latin female answered the door. The Latin female identified herself as Mira [sic].
       HPF Officer Garcia told Mira that he had developed information that narcotics trafficking was
       being conducted from the residence. Mira stated that she and her two children were the only
       persons at the residence. Officer Garcia asked Mira if she would consent to a search of the
       residence. Mira stated that she would not. Agents then conducted a security sweep of the
       residence to secure it until a search warrant could be obtained. In the upstairs master
       bedroom bath, Special Agent Wooley found Narvaez del Rio hiding.

               All occupants of the residence were moved to the living room area to ensure officer
       safety. Before leaving the residence to write the affidavit for the search warrant, Special
       Agent Wooley asked Narvaez del Rio his name. He answered Luis Pulido.2

       Restrepo and Pulido were indicted for conspiracy to distribute cocaine and for aiding and

abetting one another in that conspiracy.



B. DISTRICT COURT'S RULING

       The district court first found that the "security sweep" of Regency was unconstitutional; and

the government does not contest that ruling before this court. Then, agreeing with Pulido, the district

court ruled that all evidence seized from Regency pursuant to the search warrant must be suppressed


   2
    At the time Wooley prepared the affidavit, he believed that Pulido was actually Narvaez del
Rio. Apparently the officers discovered a "cedula" from the Republic of Columbia for Raphael
Antonio Narvaez del Rio in the large wallet found in the blue Toyota.
because Wooley's search warrant affidavit contained information derived from the unconstitutional

search. The district court based its decision on Murray v. U.S., which held that a search pursuant to

warrant is not an independent source of the evidence seized if the police officers' "decision to seek

the warrant was prompted by what they had seen during the initial entry, or if information obtained

during that entry was presented to the Magistrate and affected his decision to issue the warrant."3

Because the government offered no evidence showing that the magistrate judge issuing the warrant

in this case did not rely on "the entire affidavit in making the decision to sign the search warrant," the

district court found that the search warrant could not constitute an independent source of the seized

evidence.



          The district court rejected the government's contention that, using the methodology endorsed

in Franks v. Delaware,4 for excising false statements, the court should excise the tainted information

from Wooley's affidavit and then consider whether the remaining untainted information furnished

probable cause. The district court believed that it was bound by Murray's command that the

illegally-acquired information not affect the magistrate judge's decision. The district court also relied

on our post-Murray decision in U.S. v. Register,5 in declining the government's entreaty to apply the

Franks procedure.



          Finally, after determining that Restrepo lacked standing to challenge the search of Regency,

the district court ruled that evidence from the Regency search was nevertheless inadmissible against

Restrepo under Federal Rule of Evidence 403. The court gave no explanation of the factors involved

in its balancing of unfair prejudice and probative value, merely stating that "the probative value of the

evidence as to Restrepo is substantially outweighed by its prejudicial effect."



   3
       108 S.Ct. at 2535–36 (emphasis added; citations and footnote omitted).
   4
       438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
   5
       931 F.2d 308, 311 (5th Cir.1991).
                                            II. ANALYSIS

A. THE FRANKS METHODOLOGY

           This case concerns the independent source exception to the exclusionary rule. The

independent source doctrine is based "upon the policy that, while the government should not profit

from its illegal activity, neither should it be placed in a worse position than it would otherwise have

occupied" had the misconduct not occurred.6 Thus, even if police engage in unconstitutional

activities—in this case, the initial entry and search of Regency in violation of the Fourth

Amendment—evidence discovered during such illegal activities is nonetheless admissible if it is also

discovered through an independent source.7



          In Murray, a four-three decision, the Supreme Court ruled t hat bags of marijuana seen by

police during an illegal warrantless search of a warehouse could still be seized pursuant to a

later-acquired search warrant if independent information supported that warrant. The search warrant

affidavit in Murray neither mentioned the warrantless entry nor contained information obtained from

that entry so the illegal search clearly did not affect the magistrate judge's decision to issue the

warrant.8 Writing for the plurality, Justice Scalia explained the contours of the independent source

doctrine in such circumstances:



                 The ultimate question [ ] is whether the search pursuant to warrant was in fact a
          genuinely independent source of the information and tangible evidence at issue here. This
          would not have been the case if the agents' decision to seek the warrant was prompted by
          what they had seen during the initial entry, or if information obtained during that entry was

   6
       Murray, 108 S.Ct. at 2535.
   7
    See Segura v. U.S., 468 U.S. 796, 814, 104 S.Ct. 3380, 3390, 82 L.Ed.2d 599 (1984)
(evidence admissible when search warrant issued solely on basis of information known before
previous illegal entry and items were not seen during illegal search). See also, e.g., Hamilton v.
Nix, 809 F.2d 463, 467–68 (8th Cir.1987) (testimonial evidence admissible when police lawfully
learned of witness's involvement during an interrogation occurring before defendant's Fifth and
Sixth Amendment rights were violated); U.S. v. Cotton, 770 F.2d 940, 947 (11th Cir.1985)
(evidence admissible despite illegal use of beeper because ground radar provided independent
source of plane's location).
   8
       108 S.Ct. at 2536.
          presented to the Magistrate and affected his decision to issue the warrant.... The District
          Court found that the agents did not reveal their warrantless entry to the Magistrate, and that
          they did not include in their application for a warrant any recitation of their observations in
          the warehouse. It did not, however, explicitly find that the agent s would have sought a
          warrant if they had not earlier entered the warehouse.9

The Court then ordered the case remanded to the district court for a determination whether the

warrant-authorized search of the warehouse was prompted by the initial illegal search.



          In the case now before us, the district court interpreted Murray's phrase—"or if information

obtained during that entry was presented to the Magistrate and affected his decision to issue the

warrant"—as requiring the court to consider the actual effect of the illegally-acquired information

in Officer Wooley's warrant affidavit on the decision of this particular magistrate judge to issue the

warrant to search Regency. Although we acknowledge that the district court's interpretation is at

least facially consistent with Justice Scalia's statement in Murray, we believe, for the reasons that

follow, that the Supreme Court never intended this interpretation.



          Prior to Murray, this and other circuits had adopted variations on the rule that evidence

obtained in an illegal search is first excised from the warrant affidavit, after which the expurgated

version is evaluated for probable cause.10 This approach was simply the logical extension of the rule

in Franks that warrant affidavits containing false statements are to be afforded this treatment. In

Antone,11 for example, t he defendant moved to suppress all evidence seized from his residence

pursuant to a search warrant on the grounds that the warrant affidavit contained information gained

through a prior illegal search. On review of the district court's denial of the defendant's motion, we

found, as per Franks, that the district court acted correctly in excising the tainted information from

the warrant affidavit and then considering whether the redacted warrant was nevertheless based on


   9
       Id. at 2535–36 (emphasis added; citations and footnote omitted).
   10
     See, e.g., U.S. v. Antone, 753 F.2d 1301, 1307 (5th Cir.1985); U.S. v. Veillette, 778 F.2d
899, 903–04 (1st Cir.1985).
   11
        753 F.2d at 1307.
probable cause. We concluded, as had the district court, that because the tainted information

constituted only a small part of the information presented to the magistrate judge in support of the

search warrant, the warrant was based on probable cause.12



              Nothing in Murray—other than perhaps the unfortunate sentence fragment in dispute

here—indicates that the Supreme Court intended to reject the prevailing Franks-inspired rules.13 The

relevant phrase ("affected his decision to issue the warrant"), almost certainly was simply a

paraphrase—albeit a confusing one when considered noncontextually—of the approach long

sanctioned in the circuits. The Third Circuit's recent decision in U.S. v. Herrold,14 the only case we

have found that even considers the interpretation of Murray espoused by Pulido, makes this point

abundantly clear:



              [T]he Court's use of "affect" in Murray must be understood to signify affect in a substantive
              manner. Thus, 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. Rather, if the application contains probable cause apart from
              the improper information, then the warrant is lawful and the independent source doctrine
              applies, providing that the officers were not prompted to obtain the warrant by what they
              observed during the initial entry.15

In addition, we find no other post-Murray circuit cases concerning the independent source doctrine

that have interpreted Murray as refuting their 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.16

   12
        Id.
   13
     Of course, even had the plurality in Murray intended to question the established
Franks-derived approach, its discussion of this point would constitute mere dictum given that
tainted information was not even offered to the magistrate judge in that case.
   14
        962 F.2d 1131 (3rd Cir.1992).
   15
        Id. at 1141–1142.
   16
    See, e.g., U.S. v. Gillenwaters, 890 F.2d 679, 681–82 and n. 4 (4th Cir.1989); U.S. v.
Johnston, 876 F.2d 589, 592 (7th Cir.1989). Cf. U.S. v. Walker, 931 F.2d 631, 633 (10th
        Finally, contrary to Pulido's assertion, our post-Murray decision in Register does not demand

the suppression of evidence seized at Regency. Register did not hold that an affidavit containing

tainted evidence cannot be an independent source; it held that the search warrant in that case was

an independent source of evidence under Murray because the warrant affidavit contained no

information gained in the illegal entry—as distinguished from affidavits containing false or (as here)

tainted information.17



        For the forgoing reasons, we find that the district court erred in concluding that Murray and

Register require suppression of evidence seized at Regency in the absence of subjective proof by the

government that the tainted information did not affect the decision of this particular magistrate judge

to issue the warrant. Instead, in all such cases the district court should consider whether the warrant

affidavit, once purged of tainted facts and conclusions, contains sufficient evidence to constitute

probable cause for issuance of the warrant.



         The government claims that Wooley's warrant affidavit, when expunged of tainted

information, still contains sufficient evidence linking Regency with narcotics trafficking to support

the search warrant. When, as here, the determinative facts are not in dispute, the question of probable

cause is one of law and may be resolved by this court.18


Cir.1991) (evidence admissible because defendant failed to delineate what evidence in affidavit
was obtained illegally).
   17
    931 F.2d at 311 (as affidavit contained no mention of information elicited by illegal search,
warrant an independent source).
   18
     Citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983),
U.S. v. Wake, and U.S. v. May, 819 F.2d 531, 535 (5th Cir.1987), Judge Johnson, in his
concurring opinion, contends that we should remand this case to the district court for that court's
determination of whether the expurgated warrant affidavit provided probable cause for the
magistrate judge's issuance of the search warrant. We believe that remand is neither required by
the authorities cited by the concurrence nor compelled by the particular facts in this case. The
authorities cited by the concurrence stand for the proposition that the court (whether district court
or appellate court) ruling on the suppression motion gives deference to the decision of the
magistrate judge (or court) that issued the warrant. An appellate court need not give deference,
however, to the district court's deferential review of the magistrate judge's decision. Moreover,
we seriously doubt that it is appropriate to apply the deferential, substantial basis standard of
           When we exclude from Wooley's warrant affidavit those facts and conclusions that would

not have been available but for the illegal entry into Regency,19 the affidavit still contains the

following information: the confidential informant's tip about narcotics trafficking at Imogene; the

neighbor's tip about comings and goings at Imogene; information from surveillance on the activities

of Pulido and Restrepo; evidence suggestive of narcotics trafficking seized from the blue Toyota;

Wooley's expert opinion that such conduct is typical of narcotics trafficking; and the HL & P

connection between Imogene (the suspected stash house) and Regency. After consideration of this

independently-acquired, untainted information, we find as a matter of law that the expurgated warrant

affidavit provided sufficient information linking Regency with suspected narcotics trafficking to

constitute probable cause for issuance of a search warrant.



B. MOTIVATION: MURRAY'S NEW REQUIREMENT

           Murray states that a search pursuant to warrant is not a genuinely independent source of

evidence "if the agents' decision to seek the warrant was prompted by what they had seen during the

initial [illegal] entry."20 Thus, Murray instructs the trial court to determine—separate and apart from

its determination of whether the expurgated warrant affidavit contains probable cause21—whether

information gained through the illegal search influenced or motivated the officers' decision to procure




review to the issuing magistrate judge's decision when the magistrate judge never considered the
warrant affidavit purged of tainted information and the district court never reviewed such action
of the magistrate judge.
   19
     The district court found that, but for the illegal entry that confirmed that Pulido was in the
house, Wooley would not have known that Garcia was lying when she said that she and her two
children were the only persons home. Neither could Wooley have characterized Pulido as
"hiding" or have connected (incorrectly) Pulido to the name Raphael Antonio Narvaez del Rio.
   20
        108 S.Ct. at 2535.
   21
     "Murray is most significant precisely because the majority refused to follow the rather
common position taken by the lower courts, namely, that the fruit-of-the-poisonous-tree issue
presented by cases of this genre can be resolved by focusing only upon the question of whether
facts obtained by the prior illegal action were critical to the probable cause finding supporting the
warrant." Wayne R. LaFave, Search and Seizure, § 11.4(f), at 70 [1992 Supp,] (2d ed. 1987).
a warrant.22 In this case, therefore, this inquiry is answered in the negative if the district court finds

that "the agents would have sought a warrant if they had not earlier entered" the Regency residence.23

As LaFave explains, Murray is intended to deal with "the so-called "confirmatory search,' conducted

for the precise reason of making sure it is worth the effort to obtain a search warrant."24



           Here, the district court did not consider whether the results of the illegal search of Regency

prompted or motivated the officers' decision to seek the warrant. As motivation is a question of fact,

we remand this issue to the district court. We nonetheless point out, by way of guidance only, that,

unlike the objective test of whether the expurgated affidavit constitutes probable cause to issue the

warrant, the core judicial inquiry before t he district court on remand is a subjective one: whether

information gained in the illegal search prompted the officers to seek a warrant to search Regency.

In the best of all possible worlds, of course, there will be statements or other evidence directly

probative of motivation or effect. But in the usual case, in which direct evidence of subjective intent

is absent, a court must infer motivation from the totality of facts and circumstances.



          Having determined that the question is for resolution by the district court in first instance, we

have not scrutinized the record for this sort of information. We suggest, however, that the district

court might wish to consider such items as the precise nature of the information acquired during the

illegal search of Regency, the relative probative import of this information compared to all other

information known to the officers, and the fact that Wooley obtained warrants for Imogene and

Hollowgreen at the same time he obtained one for Regency.



   22
     Accord U.S. v. Mithun, 933 F.2d 631, 636 (8th Cir.1991) (agent's decision to seek warrant
not prompted by seeing flash suppressor); U.S. v. Bosse, 898 F.2d 113, 116 (9th Cir.1990)
(remanding to determine effect of illegal entry and search on the officers' decision to seek
warrant); U.S. v. Halliman, 923 F.2d 873, 880 (D.C.Cir.1991) (finding that prior entry did not
influence decision to seek warrant not clearly erroneous).
   23
        Murray, 108 S.Ct. at 2536.
   24
        LaFave, Search and Seizure, § 11.4(f), at 70 [1992 Supp.].
C. EXCLUSION UNDER RULE 403

        The district court found that Rest repo lacked standing to challenge the illegal search of

Regency, a determination not challenged by Restrepo before this court. Lack of standing means, of

course, that evidence seized at Regency, even if ultimately determined to be excludable as to Pulido

under the Murray analysis discussed above, is not excludable as to Restrepo, Pulido's alleged

co-conspirator.



        The district court then ruled that evidence seized in the search of Regency was inadmissible

against Restrepo under Rule 403, concluding (without explaining why) that "its probative value is

substantially outweighed by the danger o f unfair prejudice." The government contends that the

district court failed to give sufficient weight to the evidence's probative value, and suggests that the

court found the evidence unfairly prejudicial merely because it stems from an illegal search that

Restrepo, an alleged co-conspirator, lacks standing to challenge.



        As we must remand for findings of fact and conclusions of law on the question of whether the

illegal "security sweep" of Regency prompted the officers to seek the search warrant in the first place,

we ask that the district court reconsider its exclusion of this evidence as to Restrepo under Rule 403.

It seems to us that this reconsideration should comprise, among other thi ngs, the nature of the

charges in the indictment against Restrepo—that is, conspiracy to distribute cocaine and aiding and

abetting in that conspiracy—and the identification of Pulido in the indictment as Restrepo's

co-conspirator. Particularly when, as here, only two persons are charged in the indictment as

co-conspirators, logic dictates that evidence of the participation of one of the alleged co-conspirators

is relatively more probative as to the other alleged co-conspirators than the same evidence might be

if the parties were simply charged, as co-defendants, with the direct commission of the predicate

crimes. Nevertheless, if the district court should once again determine as to Restrepo that the unfair

prejudice flowing from the Regency evidence substantially outweighs its probative value, it will be

incumbent upon that court to articulate fully the reasons for its ruling.
                                          III. CONCLUSION

        As a matter of law we hold that Wooley's warrant affidavit, when purged of information

gained through the initial search, still contains facts sufficient to constitute probable cause for the

issuance of the warrant to search Pulido's residence. Concluding, however, that Murray, requires the

trier of fact to determine whether the illegal search motivated the officers to seek the search warrant,

we remand that issue to the district court. Lastly, as to Restrepo, we ask the distri ct court to

reconsider its ruling under Rule 403 to exclude evidence obtained in the search of Pulido's residence.



        REVERSED in part and REMANDED in part.



        JOHNSON, Circuit Judge, concurring:

        While I agree that the majority has formulated the correct methodology for analyzing a

warrant affidavit tainted by an illegal search, I am concerned with its conclusion that the warrant

affidavit contains sufficient facts to constitute probable cause. It seems to me that it is at least a close

question in this case whether the warrant affidavit, purged of the information gleaned from the illegal

search, contains sufficient facts to support a finding of probable cause. Because the district court is

in a better position to review the warrant affidavit, I would remand this case to the district court for

its own probable cause analysis. See Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76

L.Ed.2d 527 (1983); United States v. Wake, 948 F.2d 1422, 1428 (5th Cir.1991); United States v.

May, 819 F.2d 531, 535 (5th Cir.1987).1

   1
     The majority in this case conducts a de novo review of the sufficiency of the warrant affidavit.
I cannot join in this result. The Supreme Court in Illinois v. Gates has expressly forbidden de
novo review of the sufficiency of a warrant affidavit. 462 U.S. at 236, 103 S.Ct. at 2331 ("we
have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should
not take the form of de novo review."). The reason for this rule is simple: the courts of appeals
are ill equipped to undertake an extensive after-the-fact review of the sufficiency of a warrant
affidavit.

                Nonetheless, from the remote position of an appellate court, the majority would
        offend this rule and attempt to reevaluate the sufficiency of a warrant affidavit. The
        majority distinguishes Gates on the basis that Gates involves the review of a magistrate,
        not the district court. The majority concludes that "[a]n appellate court need not give
        deference ... to the district court's deferential review of the magistrate judge's decision."
In all other respects, I concur in the majority opinion.




Majority Opinion, slip opinion at 5956 n. 18. Significantly, however, the majority cites no
authority for this distinction. Nor does it attempt to justify the distinction. I must
conclude that the language in Gates requires that we remand. This Court is an
inappropriate forum for the type of extensive review that the majority conducts in this
case.
