(dissenting).
The decision of the majority illustrates the dangers inherent in a system of formulistic jurisprudence. In mechanically applying the “fruit of the poisonous tree” doctrine, the majority in my opinion fail to give adequate recognition to the fact that a decision in this case necessitates the balancing of two conflicting interests : (1) the protection of citizens from unreasonable searches and seizures; and (2) the need for a vigorous administration of the criminal law. See Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, 1939.
The rule that evidence obtained as a result of an illegal search cannot be admitted against a party who has standing to challenge the search was adopted to dissuade government agents from using illegal procedures to obtain evidence, and although specific evidence might be excluded for that reason, it was not intended to grant immunity to the criminal whose rights were violated. Thus, it has been recognized that if the government can show that the evidence was available through a completely independent source, it is admissible, even though it consists of the same material that had previously been illegally seized. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, 1920; Nardone v. United States, supra. The courts are left, therefore, with the difficult problem of determining if the evidence that the government seeks to introduce has been obtained independently of the illegal acts of government agents.
In resolving this problem, the majority has not heeded the words of Mr. Justice Frankfurter when, in discussing the admissibility of evidence obtained as a result of the use of wiretaps, he said:
“Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the government’s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint. A sensible way of dealing with such a situation * * ought to be within the reach of experienced trial judges.” [Nardone v. United States, supra, 308 U.S. at 341, 60 S.Ct. at 268.]
To see the issue clearly in this case, it is necessary to know what information the government obtained during the course of the illegal search and how it related to the evidence found during the legal search. During the course of an illegal search on April 18, 1958, Agent Pera noticed that one of the closets was lined with cedar panelling and, in response to a question by him, Martin Spolan, the agent of the landlord, informed Pera that the closet had been lined after Paroutian and Graziani *492moved into the apartment (Tr. 413). On June 19, 1958, in the course of a legal search, narcotics agents found heroin and a letter hidden in a secret compartment in the cedar lined closet. It is this evidence which the defendant sought to have excluded.
It is important to note that the information obtained during the course of the search of April 18th did not give the agents additional grounds for believing that narcotics were cached in the apartment; nor did it establish that there was a secret compartment. The most that this information did was to give the agents an idea as to where to begin the search of the apartment when they returned on June 19th. In other words, all that Pera learned during the illegal searches was that there was cedar panelling in the closet. The fact of its installation after Paroutian and Graziani were in occupancy was ascertained as a result of legal questioning, not from an illegal search.
No leads or clues as to the existence of the hidden narcotics were obtained from the illegal searches. Only after Paroutian and Graziani had been legally dispossessed did Pera return. At such time, the agents were free to explore the entire apartment. They might have found heroin under the rugs, in kitchen cracks, or behind plastered walls. Had they discovered heroin hidden in any of these places, it is doubtful that even the majority would question the admissibility of such evidence. That the panelling had been previously observed had no more legal significance than the fact that the narcotics agents had learned where Paroutian and Graziani lived or had noticed the general construction of the apartment.
In the light of these circumstances, it is unreasonable to hold that the government may not introduce the evidence discovered on June 19th. Although the majority concedes that this evidence can be introduced if on a new trial the government can present additional proof that the excluded evidence had an independent source, I see no need for additional proof of its independence. A realistic appraisal of the facts presented to the district court compels the conclusion that the narcotics and letter would have been found on June 19th, even if there had not been a search on April 18th. Agent Pera, who originally expressed interest in the cedar lining and elicited the information that it had been recently installed, was present during the search of June 19th. Also, there was in evidence, as part of the hearing on jurisdiction, an affidavit by Agent Pera in which he stated that the search of June 19th was predicated on the basis of information which he had received that Graziani and Paroutian had maintained a secret compartment in the walls of the apartment. In my opinion, these facts conclusively establish that the government was not benefited by the search of April 18th and, therefore, there is no more reason to exclude the letter and heroin from evidence than there would be to grant appellant absolute immunity from future prosecution.
While I believe that the judgment of the district court should be affirmed because the evidence was found on June 19, 1958, independently of the search of April 18, 1958, one further point should be considered. Assuming arguendo that the heroin and letter would not have been found had it not been for the search of April 18th, does the fact that knowledge of the place where contraband is hidden arises from an illegal search taint the seizure of it? The authority in this Circuit would seem to indicate that it does not. Writing for an unanimous court in Parts Mfg. Corp. v. Lynch, 2 Cir., 1942, 129 F.2d 841, a case in which the government’s knowledge of the location of the seized goods was founded solely on information obtained as a result of a prior illegal seizure, the author of the majority opinion in the instant case said:
“any illegality would have to rest on the single fact that the Assistant United States Attorney knew where the parts were. If we so *493held we would say in effect to appellant: Since the first seizure was illegal, you now have a chance to spirit away the evidence, for no search can be made until sometime after the FBI has lost track of its whereabouts. The protection of the Fourth Amendment is not to be secured by adopting the rules of hide and go seek * * * It is too much to hold that in order to obliterate the original illegal seizure an otherwise exemplary procedure must be thrown over because the government did not close its eyes and lose track of the stolen parts.” [129 F.2d at 843.]
If the fact that the government knew of the location of goods to be seized only because of a prior illegal seizure does not invalidate the seizure of those goods, then a seizure should not be invalidated merely because an illegal search provided the government with a clue to the location of the seized goods.
I would affirm.