dissenting:
I am not convinced that the Government has established that the appellant’s statement was not the result of the illegal search. Accordingly, I would hold the statement inadmissible.
I agree with the majority that not all statements following an unlawful search are tainted per se. As the Supreme Court said in Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963):
“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” [citation omitted].
My reading of the testimony in this case, however, convinces me that the criminal investigators clearly exploited the illegal search and that the original taint was never dissipated.
The appellant was interrogated two days after the search. At the time of the search, he was with his unit in the field and had no knowledge of the search or the apprehension of his girl friend. After the criminal investigator advised the appellant of his rights, he informed him of several facts concerning the search, viz., the police authorities had been to his apartment; drugs had been purchased from his girl friend at the apartment; the apartment had been searched and drugs had been found; and the appellant was suspected of being the owner. The interrogator did not inform the appellant of the amount or type of drugs found in the apartment or purchased from his girl friend. In his statement the appellant admitted that heroin, mandrax and drug paraphernalia were located in the apartment.
In a recent case, the Supreme Court has suggested several factors to be considered in determining whether the Government has met its burden of demonstrating that the primary taint has been purged. These factors, as correctly noted by the majority, include the presence or absence of Miranda warnings, the temporal proximity of the illegal search and the confession, the presence of intervening circumstances and the purpose and flagrancy of the official wrong. Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
Unquestionably, the appellant was advised of his rights under Article 31 of the Code and of his right to counsel. But, as the Court noted in Brown, that factor alone does not necessarily break the casual connection between the illegality and the confession. Id. at 603, 95 S.Ct. 2254. The two-day hiatus between the search and the confession, could under some circumstances render the connection between the two so “attenuated as to dissipate the taint.” Wong Sun v. United States, supra, 371 U.S. at 491, 83 S.Ct. at 419. But in the instant case there was in practical effect no hiatus. The appellant did not know of the search or the apprehension until so informed by the interrogators. For the same reason, there were no intervening circumstances. Nor in my opinion can the controlled purchase be considered an independent transaction as contended by the majority. The purchase is too closely connected with the illegal search to have any significant independent vitality. The Government has not demonstrated the appellant confessed because his girl friend had been arrested in his apartment, *866rather than because drugs had been discovered there. As for the bona fides of the agents conducting the search, there is concededly no evidence to show that they were acting in bad faith. However, to make this the controlling factor in the case would, in my opinion, place an unwarranted premium on incompetence.
As the Government has failed to meet its burden, I would set aside the affected charges and reassess the sentence.