(dissenting):
This case should be put in proper perspective. It is important not to let our judgment be clouded by the conduct of the security police investigators in this case. Appellant was convicted on October 19, 1990, of conduct unbecoming an officer by committing sodomy and adultery with Mrs. S on numerous occasions between May 4 and June 29, 1990. Appellant met Mrs. S in March 1990, and they started to socialize together. Beginning in the middle of March 1990, First Lieutenant Morey, who also worked in the Public Affairs Office, observed Mrs. S’s automobile parked outside appellant’s BOQ (Bachelor Officers’ Quarters) on several occasions during the evening hours.
Prior to June 25, 1990, Lieutenant Morey was concerned about appellant as an officer having an adulterous relationship with an enlisted person’s spouse. He talked to a contemporary as to how he would confront this officer and how he would make the authorities aware of what was happening.
On June 25, 1990, First Lieutenant Morey complained to Staff Sergeant Hagans, a Security Police investigator (SPI), “that he suspected an adulterous affair” between appellant and Mrs. S because of his observations. CMR unpub. op. at 2. Based on this report, a formal investigation was opened. Lieutenant Morey reported that on more than 15 occasions prior to June 29, 1990, he had noticed Mrs. S’s car at appellant’s quarters from approximately 6:00 p.m. until after he retired for bed at 11:00 p.m. On June 16,1990, the fire alarm went off around 1:30 a.m., and the occupants of the BOQs filed out onto the street. Appellant came out of his BOQ wearing a pair of gym shorts. At that time, Mrs. S’s car was parked in front of appellant’s BOQ, but Mrs. S did not appear on the street. Additionally, at trial Captain Hess, a lawyer on base, testified that, on one occasion in April, appellant brought Mrs. S to his (Hess’) house as a date to watch movies. Captain Hess testified that based on “the close proximity of their bodies” as they sat together, he concluded appellant and Mrs. S probably had been dating.
At trial appellant moved to suppress evidence gathered during the June 29, 1990, search of appellant’s BOQ. In denying the motion to suppress the judge found that the investigators had “articulable suspicions that an offense ... was being committed.” Unpub. op. at 4.
Mrs. S testified that both her mother and grandfather had recently passed away and that she had talked to appellant about these deaths and their impact on her life. She said her conversations with appellant were a way for her to ventilate. She fur*111ther explained that their relationship then developed into an amorous affair. Mrs. S testified that from the beginning of April, they had oral sex twice a week and sometimes it would range from two to seven times per week. She testified that every time they got together from April through June, they engaged in sexual intercourse. To reinforce her testimony, Sergeant Hagans testified as to his observations on the night of June 29, 1990.
DISCUSSION
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The issue in this ease can be divided into three parts:
I. Was there Fourth Amendment coverage?
II. Did exigent circumstances justify the intrusion?
III. Should the exclusionary rule be applied?
I. Coverage
By its very terms, the Fourth Amendment protects persons, houses, papers, and effects. The term “houses” has been extended to include apartments. Clinton v. Virginia, 377 U.S. 158, 84 S.Ct. 1186, 12 L.Ed.2d 213 (1964). While the amendment does not extend to open fields, it does protect the “curtilage” around the house. Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984). If the investigator’s observations were from the curtilage and not a vantage point available to the curious passerby, there would be a violation of appellant’s Fourth Amendment rights.
The Supreme Court in Oliver defined curtilage “by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” 466 U.S. at 180, 104 S.Ct. at 1742. Whether an area falls within the curtilage depends on four factors enunciated later by the Supreme Court in United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987): “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” Applying these factors, the Court held that peering into the open front of a barn located 50 yards from the fence surrounding defendant’s home was not unlawful. Another court applying these factors found:
The backyard of a house has repeatedly been held to be within the curtilage of a house and thereby protected from a warrantless search under the Fourth Amendment____ [Supreme Court] overflight cases implicitly hold, however, that a house’s backyard is within the curtilage and is thereby protected from physical intrusion by police officers.
United States v. Boger, 755 F.Supp. 333, 338-39 (E.D.Wash.1990).
Here, the observations made by the investigators violated appellant’s Fourth Amendment rights. They were not made from a vantage point available to the curious passerby. In fact, as indicated in the majority opinion, they did look at the patio windows from a distance and were unable to make the same observations.1
The judge’s finding that there was no violation of appellant’s reasonable expectation of privacy has a basis in our opinions. In United States v. Alexander, 34 MJ 121 *112(CMA 1992), this Court held: A commander could authorize a walk-through barracks inspection in common hallways with a detector dog; if the dog alerts, this gives the commander a basis for searching the room; and the presence of the detector dog in a common hallway did not violate Alexander’s expectation of privacy. Also in United States v. Lewis, 11 MJ 188 (CMA 1981), this Court upheld an NCO’s looking into Lewis’ barracks room after he could not get an answer at the door. As Chief Judge Everett stated:
Nothing in the record demonstrates that the area around the barracks was not available for general access or that Sergeant Chestnut was peeking into the room from a location where he generally would not be allowed to be present. Under these circumstances the occupants of the room had no reasonable expectation of privacy with respect to passersby— whether casual or official — who looked into the room through an opening available in the window.
Id. at 191.
Likewise, we held that in United States v. Wisniewski, 21 MJ 370 (CMA), cert. denied, 476 U.S. 1160, 106 S.Ct. 2281, 90 L.Ed.2d 723 (1986), a noncommissioned officer could look through the blinds in the barracks used for the soldiers and their guests without violating the occupant’s expectation of privacy.
Implicitly the majority distinguishes those cases because officers and noncommissioned officers were performing their duties in or near the barracks.2 The majority in effect indicates that a BOQ duplex is more like a multi-dwelling unit than a barracks. I agree.
I conclude that the patio is part of the curtilage which normally is used for recreational activities. Therefore, appellant’s BOQ patio is covered by the Fourth Amendment.
II. Protection
I must next consider whether the investigators needed a search warrant or whether their presence justified an exception to the warrant requirement. The Supreme Court has indicated a preference for a search authorized by a warrant absent a few specifically limited exceptions. Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978). One such exception is the emergency or exigent circumstances exception. Mil.R.Evid. 315(g) indicates that this exception applies when a reasonable belief exists that a “delay ... would result in the removal, destruction, or concealment of” the evidence. See also Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 1690, 109 L.Ed.2d 85 (1990) (State court was essentially correct when it “observed that ‘a warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence, or the need to prevent a suspect’s escape, or the risk of danger to the police or to other persons inside or outside the dwelling.’ ” (citation omitted)). In this instance the investigators’ knowledge and observations may have been sufficient to establish probable cause that there was an adulterous relationship between appellant and Mrs. S. However, after they made their observations from the field, I assume there was sufficient time to obtain a commander’s authorization before approaching the patio.
III. Exclusionary Rule
Assuming an illegal government search to which the defendant has standing to object, I must next ask whether the exclusionary rule applies and, if so, to what evidence. The critical evidence here is the testimony of Mrs. S at trial. In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), the Court stressed that if the evidence “is gained from an independent source [it] may be proved like any others.” Id. at 392, 40 S.Ct. at 183. The exclusionary rule should not be used beyond the point of diminishing returns. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). While it is unclear what is required to attenuate the taint, Justice Powell stated *113in his separate opinion in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975):
The notion of the “dissipation of the taint” attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.
422 U.S. at 609, 95 S.Ct. at 2264.
In Murray v. United States, 487 U.S. 533, 537-38, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988), in a 4-3 opinion a majority of the Supreme Court set forth the philosophy behind the independent-source rationale as follows: f
Our cases have used the concept of “independent source” in a more general and a more specific sense. The more general sense identifies all evidence acquired in a fashion untainted by the illegal evidence-gathering activity. Thus, where an unlawful entry has given investigators knowledge of facts x and y, but fact z has been learned by other means, fact z can be said to be admissible because derived from an “independent source.” ...
The original use of the term, however, and its more important use for purposes of this case, was more specific. It was originally applied in the exclusionary rule context, by Justice Holmes, with reference to that particular category of evidence acquired by an untainted search which is identical to the evidence unlawfully acquired — that is, in the example just given, the knowledge of facts x and y derived from an independent source.
From the various rationales set forth, one can see the difficulty of applying the independent-source doctrine.
There are, however, various factors that may be examined: the lapse of time between the illegal conduct and the derivative evidence; the nature of the relationship between the witness and the original illegality; and voluntary acts of third parties. Brown v. Illinois, 422 U.S. at 590, 95 S.Ct. at 2254.
In this instance there is a gap of nearly 4 months between the date of the investigator’s observations and Mrs. S’s testimony at trial. Even without the action of the law enforcement officials, the record indicates that there were a number of witnesses known to Mrs. S who could testify as to the relationship between Mrs. S. and appellant, other than the three who testified at trial. Clearly, Mrs. S knew that others were aware of her affair with appellant.
More important is the voluntary act of a third party, in this instance Mrs. S. The volitional act of a testifying witness should be treated differently from secondary physical evidence discovered through a constitutional violation. Compare People v. Eddy, 349 Mich. 637, 85 N.W.2d 117 (1957), with People v. Albea, 2 Ill.2d 317, 118 N.E.2d 277 (1954). However, this case differs from both Eddy and Albea in that the witnesses were not discovered as a result of the illegal conduct but were known months in advance.
The Supreme Court addressed the volitional act of a witness in United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978). Cf. New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990) (Court upheld admissibility of defendant’s statement made shortly after his arrest in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). In Ceccolini, the Court did not accept the Government’s suggestion of “a per se rule that the testimony of a live witness should not be excluded at trial no matter how close and proximate the connection between it and a violation of the Fourth Amendment.” 435 U.S. at 274-75, 98 S.Ct. at 1059. Chief Justice Burger, however, writing separately, indicated he would have accepted the Government’s per se rule to “alleviate the burden — now squarely thrust upon courts.” Id. at 285, 98 S.Ct. at 1065. The Court recognized the case could be decided on narrower grounds.
Then-Justice Rehnquist, writing for the majority in Ceccolini, stated, “[T]he degree of free will necessary to dissipate the taint will very likely be found more often in the *114case of live-witness testimony than other kinds of evidence.” Id. at 276-77, 98 S.Ct. at 1060. He emphasized:
Another factor which not only is relevant in determining the usefulness of the exclusionary rule in a particular context, but also seems to us to differentiate the testimony of all live witnesses — even putative defendants — from the exclusion of the typical documentary evidence, is that such exclusion would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby. Rules which disqualify knowledgeable witnesses from testifying at trial are, in the words of Professor McCormick, “serious obstructions to the ascertainment of truth”; accordingly, “[f]or a century the course of legal evolution has been in the direction of sweeping away these obstructions.” C. McCormick, Law of Evidence § 71 (1954).
435 U.S. at 277, 98 S.Ct. at 1061.
Justice Rehnquist indicated that the witness’ testimony was “of her own free will” and not “coerced” or “induced by official authority”; the illegally-obtained evidence was not used in questioning her; nearly a year transpired between the search and the first contact with the witness; her identity was known prior to the search; and there was “not the slightest evidence” that the officer made the search “with the intent of finding a willing and knowledgeable witness to testify against” defendant. Id. at 279-80, 98 S.Ct. at 1062. Because of these five factors, the Court did not have to adopt a per se volitional-act rule.
In this case there was not the slightest indication that the search was made to obtain the identity of the already known witness, Mrs. S. The majority of cases applying the attenuation and independent-source doctrines do so when police, like the investigators in this case, have prior knowledge of the existence of the witness, the location of the witness, and the connection of the witness with the defendant. Lockridge v. Superior Court, 3 Cal.3d 166, 89 Cal.Rptr. 731, 474 P.2d 683, 686 (1970) (“[Ejven if the witness was discovered as a result of illegal police conduct, his testimony is admissible if [it] would have been discovered in the normal course of a lawfully conducted investigation.”); State v. McBarron, 224 Kan. 710, 585 P.2d 1041 (1978) (witness known prior to illegal arrest of defendants); State v. Roe, 612 S.W.2d 192 (Tenn. Crim.App.1980) (before illegal arrest police knew identity of one witness and that witness named the others); State v. O’Bremski, 70 Wash.2d 425, 423 P.2d 530 (1967) (existence and identity of witness known prior to illegally entering defendant’s apartment). This case is unlike the cases where courts have held that witness testimony was not attenuated because the identity of the witness was not known prior to the illegal conduct. E.g., United States v. Ramirez-Sandoval, 872 F.2d 1392 (9th Cir. 1989).
The presumptive taint of the illegal search is severed in this case because much of what was known was gained 2 months prior to the illegal presence on the patio. Whether Mrs. S was unsure if she was told about the observation before or after her written statement is immaterial. In fact, the date of the observation was the last date charged. As she indicated, they had been together numerous times before the 29th of June, a fact observed by Lieutenant Morely at appellant’s BOQ numerous evenings. During these evenings one could easily draw the inference that they were not saying a Pater Noster.
Chief Judge Brown of the Court of Appeals for the Fifth Circuit stated in Gissendanner v. Wainwright, 482 F.2d 1293, 1296 (1973), “[B]eguiling as it is, we resist the temptations of the serpent of another tree, not only to eat, but swallow the fruit or the fruit of the fruit, or the theory of the fruit, poisoned, palatable or forbidden.” I fear that the majority has taken the actions of the investigators on June 29 to do a reverse poisoning.
Since I would hold that Mrs. S’s testimony at trial was admissible under the inde*115pendent-source doctrine, it is not necessary for me to discuss the inevitable-discovery doctrine. I further conclude that Mrs. S’s testimony would be sufficient without the investigator’s testimony to sustain the conviction for sodomy and adultery between May 4 and June 28, 1990.
I would affirm the decision of the Court of Military Review.3
. The plain-view doctrine, which is better described as the open-view doctrine, does not violate the Fourth Amendment when the obsérvations are made from an area over which appellant does not have a reasonable expectation of privacy.
. ‘Looking into the window of a private residence is a search.” 37 MJ at 108.
. If a rehearing was authorized, the Government might establish why Mrs. S was willing to testify or how the police carried out similar investigations on the same installation concerning adulterous or improper relationships between officers and other individuals.