(dissenting).
Being of the opinion that the passengers, witnesses to a crime, should not have been suppressed as witnesses, i. e., *593in effect being made incompetent to testify to matters within their knowledge concerning criminal activity on the part of someone else, I respectfully dissent.
It is not entirely clear to me as to when the district court thought the illegal police activity commenced. The majority opinion of this court construes the district court opinion as holding that the police officers had a reasonable suspicion justifying the initial interrogation. I agree, and to the extent that the district court indicated otherwise it would seem clearly wrong. Four men were parked in a vacant lot in an industrial area at 2:30 in the morning in a Chicago suburb where recent burglaries had taken place. The defendant’s story of looking for a friend’s restaurant did not check out as all restaurants in the area had been closed for several hours. The officer who testified had had past experience with illegal immigrants who had been transported into this country by automobile. The area had small factories “looking for cheap labor.” The passengers in the automobile spoke no English nor did they have any United States identification cards. One of the occupants had a card which appeared to be a Mexican Army card. Three shopping bags of clothing were in the car.
On the basis of these facts, I would have some difficulty in faulting the police conduct. See United States v. Cata-lano, 450 F.2d 985 (7th Cir. 1971). The police action was scarcely of the dragnet variety. However, this aspect of the case does not assume the significance that two other facets do.
The first of these is the extent to which the exclusionary rule should be extended. Putting the matter another way, how remote a branch of a poisoned tree is still capable of bearing tainted fruit not subject to the plucking for testimonial use? I am here, of course, assuming arguendo that the police conduct was such as to bring into play the exelu-sionary rule as to any tangible item found in the automobile or any statement that might have been made by any of the persons in the automobile. Here, however, the effect of the district court ruling is to make witnesses to a crime incompetent to testify. “The rules which disqualify witnesses who have knowledge of relevant facts and mental capacity to convey that knowledge are serious obstacles to the ascertainment of truth. For a century the course of legal evolution has been in the direction of sweeping away these obstructions.” McCormick on Evidence § 71, at 150 (1954).
A reversal of direction in this well developed trend of the law can obviously be dictated by policy considerations. I fail to find, however, such a countervailing policy here, I am not unmindful that respectable authority1 has held that the exclusionary rule should be carried to the present position and that the Government has conceded that if a defendant has standing, testimony of witnesses discovered during an illegal search can be excluded. Nevertheless, the rationale of the exclusionary rule in my opinion does not call for its extension to the point of excluding altogether an otherwise competent witness. In so stating, I do not suggest that the weight of his testimony could not be challenged by showing the impact of the method of discovery on the likelihood of the witness’s telling the truth, e. g., if he were under compulsion to testify because of awareness that his own involvement in a crime was known by virtue of a Fourth Amendment violation.
We do not here have a Wong Sun2 situation in which the excluded evidence, a verbal statement, is deemed to be equated with “physical, tangible materials obtained either during or as a direct result of an unlawful invasion.” We here have witnesses who were in plain view of officers who, at the time, were *594engaged in their “community earetaking functions.” Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Essentially, it appears to me, we are dealing with a question of the extent to which the exclusionary rule might reasonably be expected to have a deterrent effect on proscribed police conduct. We know that the rule is not absolute, one to be applied in all circumstances. Thus, the Supreme Court in Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971), held that a statement which was inadmissible against a defendant in the prosecution’s case in chief because of a Miranda violation might be used for impeachment purposes. While we here have a proposed use of witnesses in the affirmative case of the prosecution, I cannot conceive that the rationale of deterrence of police misconduct will be furthered by this extension of the rule. The “speculative possibility that impermissible police conduct will be encouraged” (401 U. S. at 225, 91 S.Ct. at 645) by making witnesses competent in the present situation appears so remote to me that a sound public policy would draw the exclusionary situation short of a mandatory incompetency.
Indeed, in those cases holding that the witness himself may be the produce of the poisoned tree and therefore not free to testify as to his knowledge of the crime, the exclusion is not absolute and recognition has been given to what might be called an “attenuation test.” Smith v. United States, supra, 344 F.2d at 547. I have some conceptual difficulty in determining how an exclusionary rule designed to control police behavior can be applied on a case-by-case basis as Smith would have us do. I am certain that police officers would have an even greater difficulty in determining whether a possible witness’s testimony was attenuated from illegality.
While Smith did not purport to overrule an earlier case of the same circuit, Smith and Bowden v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879 (1963), cert, denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964), nevertheless, the earlier case in which the court spoke through then Judge Burger is worthy of extensive quotation as illustrating the concepts which I believe should be applicable in the present situation.
“Courts have gone a long way in suppressing evidence but no case as yet has held that a jury should be denied the testimony of an eyewitness to a crime because of the circumstances in which his existence and identity was learned. However, in our view, the relationship between the inadmissible confessions and Holman’s testimony in the District Court months later is so attenuated that there is no rational basis for excluding it. No case has been cited to us in which the testimony of an eyewitness or factual witness has been excluded because his identity was discovered as a result of disclosures made by an accused during detention violative of Rule 5(a) Fed. R.Crim.P. . . .
“The District Judge correctly read this court’s holding in Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241 (1962), as not requiring the exclusion of Holman’s testimony. Neither the Killough holding, the Mallory holding nor any other case would warrant excluding Holman’s testimony. The fact that the source of evidence is ‘tainted’ by violation of constitutional or statutory provisions has not precluded the use of that evidence in every circumstance. .
“Here no confessions or utterances of the appellants were used against them; tangible evidence obtained from appellants, such as the victim’s watch, was suppressed along with the confessions. But a witness is not an inanimate object which like contraband narcotics, a pistol or stolen goods, ‘speak for themselves.’ The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality *595whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.” 324 F.2d at 881-882. (Footnotes omitted.)
It appears to me that in the intervening ten years the exclusionary rule has been expanded so as mechanically to equate the proffer of a living witness with the proffer of inanimate eviden-tiary objects illegally seized.
What appears to me to be a recession from the underlying principles announced in Smith and Bowden followed within less than a year in McLindon v. United States, 117 U.S.App.D.C. 283, 329 F.2d 238, 241 n.2 (1964), in which the court stated it did not read Smith and Bowden as holding that testimony may never be excluded. However, in so stating, reliance was placed on cases which forbade testimony as to visual and aural observations during an unlawful search. This, it appears to me, is no support for the present matter; obviously, if seized heroin is to be excluded, a witness who was present at the seizure should not be permitted to testify to the nature and identity of the seized material. The equation is clear and all that has to be justified is that the material itself is subject to suppression.
I note that the McLindon court did not mechanically equate the proffer of a witness whose knowledge was independent of the improper conduct with the proffer of illegally seized, inanimate evi-dentiary objects. Instead, in remanding for a hearing, it laid down a case-by-case standard as follows:
“In each case the court must determine how great a part the particular manifestation of ‘individual human personality’ played in the ultimate receipt of the testimony in question. Indications in the record that mere knowledge of the witness’ identity would not inevitably guarantee that his testimony would be favorable to the prosecution; that the witness might eventually have voluntarily gone to the police even without their knowing his identity; that his testimony has remained unchanged from the start — all are relevant factors to be considered in determining the final outcome.” 329 F.2d at 241 n.2.
I find no consideration by the district court in the present case of any such factors. Rather, the rule was mechanically applied to exclude everything connected with the claimed improper conduct in a broad sweep of the broom which somehow is supposed to restrain undesirable constabulary conduct.
The rule as so expanded makes appropriate another quotation from Smith and Bowden, supra, 324 F.2d at 882:
“Mr. Justice Jackson would appear to have had something like this in mind when he expressed unwillingness to debase constitutional doctrine ‘by making of them mere technical loopholes for the escape of the guilty. The petitioners have had fair trial and fair review. The people of the State are also entitled to due process of law.’ Stein v. People of State of New York, 346 U.S. 156, 196, 73 S.Ct. 1077, 1098, 97 L.Ed. 1522 (1953).”
Of equal if not greater importance is the second significant facet of this case, that of standing. Of course, any indicted defendant is aggrieved by testimony which reflects on his guilt. Standing is something more than this human reaction. In Tane, the Second Circuit, which did apply the exclusionary rule to a witness, first considered the question of standing and determined that there was standing. In Smith, however, there seems to have been no consideration of the question. Whatever doubt there may have been as to the necessity of standing would seem to have been put to rest by the Supreme Court in Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969), where the Court stated:
“The established principle is that suppression of the product .of a Fourth Amendment violation can be success*596fully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.”
The passengers in defendant’s automobile, all in plain view, were discovered initially during the course of what seems clearly to have been a valid investigatory stop. I cannot find any standing on the part of the defendant arising from the transportation of the passengers to the police station. They may have been aggrieved in a standing sense but it is not they who are attempting to assert a right of suppression. The fact that the passengers had been in the defendant’s automobile should not, it appears to me, create some sort of vicarious standing. The defendant’s transportation of the illegal immigrants should not be the basis of creating an immunity for him from harmful testimony. Cf. United States v. Chaidez-Castro, 430 F. 2d 766 (7th Cir. 1970). He had no proprietary interest in their bodies — or minds. I would vacate the order of suppression, reverse, and remand for a trial.
. See, for example, Smith v. United States, 120 U.S.App.D.C. 160, 344 F.2d 545 (1965) ; United States v. Tane, 329 F.2d 848 (2d Cir. 1964).
. Wong Sun v. United States, 371 U.S. 471, 484-486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).