(dissenting):
I agree that the conviction of Manuel Rodriguez for harboring illegal aliens must be reversed. However, there is no basis whatsoever for distinguishing between the initial entry into 18 Bunting Lane and the subsequent search of the premises. Both to me were equally and plainly unconstitutional. Accordingly, I would remand to the district court with directions to dismiss appellant’s indictment which rested upon, and now must fall with, the unlawful entry. In its zeal to preserve a portion of the govern-*840merit’s case for retrial, the majority has, in my view, significantly eroded the Fourth Amendment’s guarantee against unreasonable searches.
Nothing which transpired during the sidewalk conversation between Jacobs and Galaes furnished justification for the agents’ decision to enter 18 Bunting Lane and then to proceed as if some judicial officer had issued a search warrant. The majority’s reference to Galaes’ supposed “willingness” to produce his passport is misleading and irrelevant. As an appellate court we are not at liberty simply to ignore the stipulation of' the Assistant United States Attorney during the suppression hearing that “there was no consent to search.”
Moreover, even assuming, arguendo, that the agents had probable cause to arrest Galaes while still on the street, the custody they say they then exercised over him gave them no derivative right to direct that he lead them into the house. To grant to the INS such extensive powers would totally subvert the Supreme Court’s decision in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which limited the right to search incident to an arrest to those areas within the control or reach of the person apprehended. See also, Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970) (an arrest on the street in front of the defendant’s home does not create its own exigent circumstances justifying the search of his house).
While it may seem that because one thing leads to another it was therefore natural and reasonable for the agents to go into the house with Galaes, once there to talk to others whom they encountered and then to conclude that those persons were also illegal aliens, the net result here is one which the Constitution as construed by the Supreme Court has long and categorically condemned. Until now no case has held that an agent seeking evidence can, without a search warrant, open the door of a home, walk in, and then seize whatever else confronts,his eyes and serves his needs. Nor is there any case which lends authority to the proposition that our jealously guarded prohibitions against casual entry of private dwellings are relaxed because an alien thought to be here illegally is arrested outside a house in which he has left his “passport.” I thus see no significance in the majority’s claim that Jacobs and his fellow agents entered 18 Bunting Lane with the single intention of procuring Galaes’ passport. The assertion is, in any event, belied by the admission of the INS itself that “the purpose of the [warrantless entry] was to seek out bodies.”1
The court’s opinion seems to me to reduce to the novel contention that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches . . .” may be sacrificed with impunity so long as the intrusion is motivated by a desire to obtain evidence for deportation rather than for prosecution. I strongly disagree.
Despite the contrary, unsupported assumption of the majority, the Fourth Amendment is not limited in its protection to those accused of criminal behavior. See Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930, 936 (1967). Our responsibility as its guarantor cannot therefore be fulfilled with the simple, albeit accurate observation that deportation is not a penal sanction, Cf. Lennon v. INS, 527 F.2d 187, at 193 (2d Cir. 1975). The one critical question, which the court artfully avoids answering is by what authority did the INS agents require Jorge Galaes to retrieve his passport and then accompany him when he returned to the house to obtain it? That their directive was issued in the context of an administrative investigation may be relevant in determining the quantum of probable cause necessary to support a search warrant,2 see Ca*841mara, supra; See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); it cannot, however, absent exceptional circumstances not revealed here, excuse their total failure even to attempt to secure the prior approval of a disinterested magistrate before entering the dwelling.
Certainly immigration authorities face a difficult task in attempting to stem the tide of illegal aliens crossing our nation’s borders in ever increasing numbers. Nevertheless, the applicability of the Warrant Clause to their efforts can no longer be doubted following the Supreme Court’s decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1972). In declining to uphold the warrantless search of an automobile at a point more than 100 miles from Mexico, Mr. Justice Stewart, writing for the majority, stressed the need to circumscribe the unfettered discretion of the officer in the field, 413 U.S. at 270, 93 S.Ct. at 2538, 37 L.Ed.2d at 601. If anything, that need is more manifest in this case given the greater protection which the constitution affords to a home than to a car, see Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419, 426 (1970).
The government, to its credit, belatedly recognized what the majority today so nonchalantly overlooks. In an effort to justify their earlier neglect to procure a search warrant, the INS has argued on appeal that the possibility that several illegal aliens would escape as soon as they were alerted to the federal presence constituted exigent circumstances necessitating immediate action. This contention is, however, flawed, insofar as it is premised upon the agents first being in the house. There is nothing in the record which would even remotely suggest that any of the inhabitants of 18 Bunting Lane were aware of the conversation on the street between Jacobs and Ga-laes. It is at that point, prior to entering the house, that one of the agents could have and should have been dispatched to obtain a search warrant. See Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). Their failure to do so is fatal.
For the above reasons, a remand now would be an exercise in futility. Eliminating all the evidence which flowed from the unlawful entry by the INS, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), at best what would remain is the testimony of Gatees who, we are informed, is no longer in the country. Moreover, the garbled recollection of Jacobs as to when Gatees was “impliedly arrested,” where he was “formally arrested,” and what precisely is the difference between these two metaphysical states, convinces me that the proper course is simply to recognize that the entire prosecution was irremediably tainted and order that the indictment be dismissed.
. Government’s brief at page 15, note.
. The Court in Almeida-Sanchez was divided, and left undecided, whether a diminished standard of probable cause was appropriate in the context of enforcement efforts to halt the ever increasing tide of illegal aliens into this country, 413 U.S. at 270, n. 3, 93 S.Ct. at 2538, 37 *841L.Ed.2d at 601. We similarly have no need to pass on that question since the INS never took the preliminary step of appearing before a magistrate and presenting their evidence. I thus note only in passing the recent comment of Chief Judge Kaufman that the severity of deportation “surpasses all but the most Draconian of criminal penalties. Lennon v. INS, at 1193.