dissenting:
I believe that, despite the wisdom claimed to have come from the Supreme Court’s decision in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), this is still a case in which the evidence was obtained in violation of the Fourth Amendment. Therefore, I dissent.
Two search warrants were issued, the first without probable cause, the second clearly the fruit of a warrantless automobile stop based neither on probable cause nor on any untoward activity of the occupants. The opinion glosses lightly over long-established principles designed to impose reasonable restraints upon the police. There is virtually no limit to the reach of police authority if judges forget the lesson of the past in their haste to support a new conceit of “law and order.”
I do not believe that the facts in Leon are anywhere close to those of this case, and there simply lies no justification for *1493discarding the decision which the former majority issued in United States v. Tate, 694 F.2d 1217 (1982), where we held (En-right, D.J., author of today’s opinion, dissenting) that the self-same warrants were without probable cause, that the vehicle stop and subsequent warrantless arrests and searches violated the Fourth Amendment. I shall not restate the facts upon which our former opinion was based; they are set forth in that decision and are not now challenged.
There are three principal aspects of the underlying facts which belie the applicability of “good faith,” which strip the automobile stop and search of any claim to legitimacy, and which taint the issuance of the second warrant and consequent search of the white Ford van as the unwholesome fruit of a poisonous growth. They are, in summary:
(1) The First Search Warrant
An anonymous informant called the Tu-lare County Sheriff’s Office and reported smelling ether at the house in question. He said he was familiar with ether based on his use of that substance for starting engines. The informant did not suggest the conclusion that P.C.P. was being manufactured; but he reported, as a suspicious circumstance, the presence of three or four black males “at the residence” and who were “utilizing” a white Dodge van. No white Dodge vehicle ever turned up. Two Sheriff’s deputies went out to the premises where they too smelled ether. They did not see any persons or any activity in or about the premises, nor any vehicle. The affidavit for search warrant stated that P.C.P. manufacture “emits a strong odor of ether.” The above is all that the magistrate had before him. At the trial, a state narcotic agent said that at about 3:30 a.m. he smelled another chemical at the premises, a precursor for P.C.P. (but that information was not before the magistrate).
(2) The Surveillance of the House, the Stop of the Station Wagon, and the Arrest of the Appellants
While the state narcotic agent was still in the vicinity of the house, and at about 5:00 a.m., a station wagon arrived with three to five black males. From a distance he observed them moving around in the vicinity of a shed. They carried some packages and objects; some of them wore gloves (the surveillance was too far away for detailed perception). After a short time, they closed and locked the shed door and drove away. The agent followed in his vehicle. Over his radio, he learned that a search warrant had been signed. The agent continued following the station wagon for about five miles. He did not observe any traffic violation or suspicious conduct. He stopped the vehicle and ordered the passengers out. He then smelled the odor of ether about their clothing, saw a whitish powder, searched them and found two keys to the Holiday Inn at Visalia. The men were taken into custody.
(3) The Finding and Search of a White Ford Van
Officers went to the Holiday Inn and searched the grounds for the missing white Dodge van. They did find a white Ford van. Through the windows they saw a scale, containers similar to containers found at the residence, and a package containing rubber gloves. They then secured a second search warrant based on the stop, the arrest and the items seen at the Holiday Inn. Upon search of the Ford van, they seized incriminating evidence.
These are the salient facts of this case. They have not changed since our first decision; but the composition of the majority has indeed shifted. The new majority’s new reasoning finds each warrant to have been based on probable cause — not merely that the police were not to be faulted for mistakenly believing, that the magistrate knew and followed the law. The majority ignores the fact that the same police who applied for the warrant knew all the facts that were in existence, not, as in Leon, where there was a totality of circumstances sufficient to constitute probable cause. Here, in whatever “totality” imaginable, *1494the facts simply do not meet constitutional muster. Therefore, the majority is now forced to create probable cause out of some gossamer weave.
The majority claims that the stop of the station wagon, five miles away, provoked by no suspicion-engendering event, but based solely on the intelligence that a warrant had been signed, was nonetheless valid because the agent was an “experienced” agent and out of that experience could build a case for arrest. The warrant was not for the arrest of any person; nothing incriminating had yet been found. The analogy to Leon is simply misplaced.
In my judgment the majority has exceeded the scope of the remand order. It was not intended to give a former dissenter an opportunity for binding creative writing. It represents an effort to encrust this circuit’s case law with a carte blanche license to invade constitutional protections. I regret that memory is so short.
Law enforcement is an important governmental endeavor. Citizens need its protection; but society also needs order and laws for those who enforce both. Mature and sophisticated understanding of the role of the police in our midst is not enhanced by throwing open the gates so that unconstitutionally intrusive conduct is sanctioned by the device of incantations and word slogans. It is still true that history shows that the police must act, but they may not be allowed to act merely on their own.
I would still order suppression in this case. Out-voted, I dissent.