(dissenting).
It is hard for me to disregard the conduct and consider the rights of an unlicensed1 drunken doctor who seems to have bungled his work and killed his patient.
Since Judge Burger thinks the police entered Wayne’s apartment legally and I think they entered illegally, while Judge Washington does not reach this question, it is not decided. Judge Washington and Judge Burger think the coroner’s testimony was rightly admitted and therefore affirm the conviction. I disagree.
Before a previous trial, Judge Pine-held a hearing on a motion to suppress evidence. Officer Dixon testified that his police cruiser got a radio call at 6:50 p. m. “for an unconscious person in apartment 614 of the Rhode Island Avenue Plaza.” At the apartment house they learned that appellant’s number was 618. Detective Martone called No. 12 Precinct to check on the number. He “learned a phone call had been placed to the precinct by a woman who said her sister was-lying dead in * * * Doctor Wayne’s apartment * * The police knocked repeatedly at his apartment, got no. answer, announced “police”, and said “open the door, this is the police”, in a loud voice. They knocked for several minutes.
Joan Dickerson joined them in the corridor outside the apartment. According to the police, she told them she had gone to Wayne’s apartment with her sister Jean, that Jean said she was going there for an abortion, that Jean went into a bedroom with Wayne, and that when Wayne came out he said “Oh, my God, she is dead.”2 Officer Martone knocked again very loudly and demanded entrance, saying “police”. The police did not announce their purpose. By the time Martone and Dixon “forced the door” and entered, five policemen, an under*215taker, and others had gathered in the corridor.
At the end of the hearing before Judge Pine he found that “the entry into [defendant's] premises by law enforcement officers, and the subsequent search thereof and the seizure made therein were illegal and in violation of the defendant’s statutory and constitutional rights”. He ordered “that all evidence seized, secured and obtained as a result of the unlawful entry be and the same is hereby suppressed as evidence”.3 He made it clear that his order was based on the failure of the police to announce their purpose.
When the present trial began, appellant’s counsel informed the court of Judge Pine’s ruling. The prosecutor told the court that “as a result of entering the apartment they found this body in there, the deceased. She was taken to the Morgue, and of course * * * the doctor at the Morgue performed an autopsy * * The trial judge announced and the prosecutor conceded that Judge Pine’s order “is not limited to the original indictment, it applies to any proceedings in this case.”
I think Judge Pine was right.
“The rule seems to require notice in the form of an express announcement by the officers of their purpose for demanding admission. The burden of making an express announcement is certainly slight. A few more words by the officers would have satisfied the requirement in this case.” Miller v. United States, 357 U.S. 301, 309-310, 78 S.Ct. 1190, 1196, 2 L.Ed. 1332 (1958). The Supreme Court suggested but did not say that an express announcement of purpose may be unnecessary if “the facts known to offieers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture.” Ibid., at 310, 78 S.Ct. at 1196. It appears to me that the facts known to the officers in the present case could not justify that certainty.4 It now appears that the purpose of the officers was to remove a corpse. But it does not appear that anything they knew made it unlikely that the occupants, one of whom was Wayne, thought they had come to arrest him. The difference is not technical but substantial. It is quite possible that Wayne was more concerned for his own immediate freedom than with the time and manner in which the police were to get the corpse. It may well be that the occupants would have opened the door if they had known the actual purpose of the police.5
The government argues that the police reasonably believed there was no living person in the apartment. Even if they had been right in thinking so, it would not have excused their unannounced forcible entry. “A man’s home is just as private when he is not there as when he is * * * It would be a far departure from fundamentals * * * to hold that a man has a protected right of privacy in his home and its belongings so long as he is on the premises, but none when he is not there. Not only does such a proposition appear untenable on its face but the cases so indicate.” Morrison v. United States, 104 U.S.App.D.C. 352, 356-357, 262 F.2d 449, 454-5 (1958). Mere failure to receive a response does not excuse omitting the announcement. Woods v. United States, 99 U.S.App.D.C. 351, 240 F.2d 37 (1957), cert. denied, 353 U.S. 941, 77 S.Ct. 815, 1 L.Ed.2d 760, and sub nom. Curtis v. United *216States, 354 U.S. 926, 77 S.Ct. 1385, 1 L.Ed.2d 1438 (1957).
It is said that there was an emergency which exempted the case from the requirement that the police announce their purpose. I think this erroneous for two distinct reasons. (1) Although the police may have thought when they got the first telephone call that a living person in need of rescue was in the apartment, they knew better before they broke in. Before they broke in, a woman had telephoned them that her sister was “lying dead” in the apartment, and Joan herself had joined them in the corridor and told them face to face that Wayne had said “Oh, my God, she is dead.” “[T]he burden is on those seeking the exemption to show the need for it, McDonald v. United States, 335 U.S. 451, 456 [69 S.Ct. 191, 93 L.Ed. 153] (1948).” United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951). Instead of showing the need for it the government has shown, though not conceded, that there was no need for it. There is no denial in the record, and the government even emphasizes, that when the police broke in they knew they would find Jean’s dead body. The record does not show, or even suggest, that some independent kind of emergency called for immediate action. (2) An emergency can justify in law no more than it requires in fact. “ [R] easonableness without a warrant is adjudged solely by the extremity of the circumstances of the moment and not by any general characteristic of the officer or his mission.” District of Columbia v. Little, 85 U.S.App.D.C. 242, 245, 178 F.2d 13, 16, 13 A.L.R.2d 954 (1949), affirmed, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950). An emergency sufficient to justify police in breaking in after announcing their purpose may not be sufficient to justify them in breaking in without making the announcement. The police could have announced their purpose in an instant. Announcement would have caused no delay. It would not have given the occupants an opportunity to destroy the body or other evidence or to escape. That there was, on the facts known to the police, no need for precipitate action is clear from the fact that the police took no such action. They were in the corridor many minutes before they broke in. As in the recent Wong Sun ease, “no extraordinary circumstances * * * excused the officer’s failure truthfully to state his mission before he broke in.” Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963).
In summary: even if the officers had announced their purpose, their breaking in would have been illegal because there was no emergency, and even if there had been an emergency their breaking in would have been illegal because they did not announce their purpose.
We need not consider whether the police could have got either a warrant or a subpoena authorizing them to enter the apartment and take the body. If they could, this would not excuse their forcible entry without either. Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 92 L.Ed. 436 (1948). If they could not, their violation of appellant’s privacy was all the more arbitrary. Their forcible entry would have been illegal even if there had not been so many of them that some could have gone to seek authority while others guarded the apartment. That there were so many makes the illegality of their breaking in particularly clear.
It is immaterial that Wayne was not entitled to possession of the body and that the coroner was entitled to possession of it in order to perform an autopsy. D.C.Code § 11-1203, which requires the coroner to hold inquests, does not deal with admission or exclusion of evidence. F.R.Crim.P. 41(e) provides that even if illegally seized evidence is “subject to lawful detention” it is not “admissible in evidence at any hearing or trial.” In United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), the defendant was not entitled to possession of illegally seized narcotics, but he was entitled to have them suppressed as evidence.
*217Since the body, which made it possible for the coroner to testify, was illegally obtained, I think his testimony should have been excluded.6 That the police learned legally from Joan that Jean was dead is immaterial because this knowledge did not, without the aid of the subsequent illegal entry, enable the coroner to testify. The “independent source” principle is simply that evidence obtained without use of illegal means is not excluded on the ground that the same evidence has also been obtained by use of illegal means. Since the body, and consequently the coroner’s testimony, were not obtained without use of illegal means, the principle has no application here.
The majority of the court take the position that legal acquisition of information leading to an illegal entry makes evidence resulting from the illegal entry admissible, if by using the legally acquired information in a different way the government could have got the resulting evidence legally. The court says: “even had the police not entered appellant’s apartment at the time and in the manner they did, the coroner would sooner or later have been advised by the police of the information reported by the sister, would have obtained the body, and would have conducted the examination prescribed by law. See D.C.Code Ann. § 11-1203 (1961). Thus, the necessary causal relation between the illegal activity and the evidence sought to be excluded is lacking in this case.” This amounts to saying that because the government had obtained from Joan enough information to get a warrant or a subpoena there was no need to get one; that evidence obtained by breaking in without a warrant is admissible if the same evidence could have been obtained legally by getting a warrant. The Supreme Court has held the contrary many times. “Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.” Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925). Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1932); Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). “Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the [Fourth] Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.” Johnson v. United States, supra, 333 U.S. at 14, 68 S.Ct. at 369. As Judge Clark recently said for the Second Circuit, “a showing that the government had sufficient independent information available so that in the normal course of events it might have discovered the questioned evidence without an illegal search cannot excuse the illegality or cure tainted matter. * * * The test must be one of actualities, not possibilities.” United States v. Paroutian, 2 Cir., 299 F.2d 486, 489 (1962). I know of no decision to the contrary.
“In order to make effective the fundamental constitutional guarantees of sanctity of the home and inviolability of the person, Boyd v. United States, 116 U.S. 616 [6 S.Ct. 524, 29 L.Ed. 746], [the Supreme] Court held nearly half a century ago that evidence seized during an unlawful search could not constitute proof against the victim of the search. Weeks v. United States, 232 U.S. 383 [34 S.Ct. 341, 58 L.Ed. 652], The exclusionary prohibition extends as well to the indirect as the direct products of such invasions. Silverthorne Lumber Co. v. United States, 251 U.S. 385 [40 S.Ct. 182, 64 L.Ed. 319]. Mr. Justice Holmes, speaking for the Court in that ease * * expressed succinctly the policy of the broad exclusionary rule: ‘The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be *218used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.’ 251 U.S., at 392 [40 S.Ct. at 183].” Wong Sun v. United States, 371 U.S. at 484-485, 83 S.Ct. at 416.
Though the coroner’s testimony resulted indirectly from information, legally obtained, that Jean was dead, it resulted more directly from knowledge obtained through subsequent illegal action of the police. Courts have sometimes held that a supervening criminal cause insulates a previous non-criminal cause from responsibility for consequences. I doubt if it has ever been held before that a previous non-criminal cause insulates a supervening criminal cause from responsibility for consequences.
. Wayne’s license bad been revoked under D.C.Code § 2-123 as the result of a prior abortion.
. Transcript, p. 36. At the trial, Joan herself testified that when Wayne came out of the bedroom he “said she was dead”; that he said “Oh, my God, I believe she’s dead”; and that he said, “Oh, my God, she’s dead”. Joan gave each of these versions. She also testified that she went into the bedroom and saw her sister lying on the bed, dead; that she walked to her aunt’s home five blocks away; and that a cousin telephoned the police from a neighbor’s house. This testimony has some tendency to confirm, though only indirectly, the testimony of Joan and the police as to what the police knew when they broke in.
. Crim. No. 59-1-60; May 15, 1961.
. Cf. United States y. Barrow, 212 F.Supp. 837 (E.D.Pa.1962).
. If the police know that the occupants are aware the police want to get in, this does not excuse failure to announce their purpose. Miller y. United States, supra; Accarino v. United States, 85 U.S.App. D.C. 394, 179 F.2d 456 (1949); Masicllo v. United States, 113 U.S.App.D.C. 32, 33-34, 304 F.2d 309, 400-401 (1902); Hair v. United States, 110 U.S.App.D.C. 153, 155, 289 E.2d 894, 896 (1961).
I know of no case which requires the occupants to ash the police purpose, as Judge Burger suggests they should have done.
. Cf. the concurring opinion of Circuit Judge Wright in Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241, 252 (1962).