dissenting in part and concurring in part.
The facts which produce my dissent can be briefly summarized.
Uncertain that he could procure a search warrant upon information he then possessed, Special Agent Seward of the United States Drug Enforcement Administration persuaded a paid government informant and convicted felon then under indictment, Charles Bert, to break into the home of the defendant Thomas Flowers for the sole purpose of confirming the continuing presence therein of a tableting machine used in the ■production of drugs. This was information which Seward conceived necessary to include in an affidavit for a warrant to search the same premises for the same machine. On the night of April 6, 1974 Bert broke into and entered the home of Thomas Flowers and confirmed the machine’s presence there. Seward then incorporated that information in his April 12 affidavit, and the federal magistrate issued the search warrant, not knowing how the information had been obtained.
On the basis that the illegally-obtained information was cumulative and that there were other untainted facts to support a finding of probable cause and to overcome a claim of staleness, the majority would uphold the search. I respectfully suggest that the result reached here conflicts with our circuit’s decisions in United States v. Langley, 466 F.2d 27 (6th Cir. 1972), and United States v. Nelson, 459 F.2d 884 (6th Cir. 1972), and is wholly at odds with the rationale of our decision in United States v. Luna, 525 F.2d 4 (6th Cir. 1975). In my opinion it fails to comport with our constitutional and supervisory duties as set forth by the Supreme Court in numerous decisions beginning with Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). See, e. g. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928); Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927); Sil verthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). I am unable to square the majority ruling with the responsibility imposed upon our court in the cited cases.
It must be remembered that we are not dealing here with federal court application of the exclusionary rule to state litigation. See, e. g., Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). At issue is the unlawful conduct of a federal officer and the introduction in a federal trial of evidence seized by virtue of a search warrant fraudulently obtained from a federal magistrate. Our. responsibility here is direct.
It is apparent that the district court considered its role to be merely to ascertain whether the remaining and untainted information in the affidavit would have been sufficient to support a magistrate’s determination of probable cause and issuance of the warrant. If this were the standard, I would be inclined to uphold the search, although entertaining some reservations concerning the staleness of the information pertaining to the North Blair premises. It is not, however.
In ruling on the motion to suppress evidence, the district court did not consider this circuit’s opinions in United States v. Langley, supra, and United States v. Nelson, supra. In Langley the affidavits for search warrants were tainted by the inclusion of information obtained when an otherwise valid but warrantless search of the exterior portions of a house and surrounding yard exceeded the permissible scope of a robbery investigation. The court held that an officer who entered an Avis truck and copied down markings on certain boxes, while ostensibly checking for the intruder, violated the Fourth Amendment. In Nelson, four warrantless searches preceded the issuance of a search warrant and were used to produce information for the affidavit in support of that warrant. Two of the searches by a motel owner on his own initiative were held to be beyond the reach of the Fourth Amendment. However, two subsequent searches by the police, after sus*1244picious circumstances were reported to them by the motel owner, were held to violate Fourth Amendment rights.
In Langley the court held that the tainted information which was included in the supporting affidavit for the search warrant was not significant in establishing probable cause. However, Judge Miller cautioned:
It must be emphasized that where such tainted information comprises more than a very minor portion of that found in an affidavit supporting a warrant to search, the warrant must be held invalid.
466 F.2d at 35.
In Nelson the affidavit was held to be fatally tainted and the search was therefore unlawful. In a concurring opinion, Judge Miller observed:
This is not a case where the tainted information which is included in an affidavit along with untainted information is trivial or insignificant or merely cumulative. It is a case where the tainted information is of such major importance that its absence creates grave doubt that the warrant would have been issued without it. If we are to uphold the fundamental purposes of the Fourth Amendment and the exclusionary rule by which it is implemented, it is my belief that the practice indulged in by the officers in this case must be condemned and the tainted evidence upon which appellants were convicted suppressed.
459 F.2d at 895 (footnote omitted). Judge Edwards, writing the opinion for the court, specifically agreed with Judge Miller’s analysis of this issue.
The conduct in the instant case was not merely an impermissible extension of otherwise lawful action, nor was it the result of oversight, neglect or ignorance. It was purposely, deliberately unlawful. I had supposed our circuit had clearly and properly made that distinction in United States v. Luna, supra, where we dealt at some length with the effect of false information incorporated in an affidavit for a search warrant. There we observed:
Nonetheless, it must be recognized that law enforcement agents presenting evidence to magistrates could make a mockery of the magistrate’s role if, in the necessarily ex parte proceeding, they could freely employ false allegations in order to secure the warrant. The same could likewise be true if the agents could, with impunity, draft affidavits with utter recklessness as to truth or falsity. In either instance there would be a lack of good faith in the performance of the agent’s duty to the judicial officer.
There are two circumstances which we believe authorize the impeachment of an affidavit which on its face is sufficient probable cause for issuance of the warrant. The first of these consists of knowing use of a false statement by the affi-ant with intent to deceive the court. This is true even if the statement can be said to be immaterial to the issue of probable cause. In our judgment such perjury must lead to suppression of the evidence in order to prevent fraud upon the judicial process.
525 F.2d at 8 (emphasis added). It is true that here the information is tainted not by its falsity but by the unlawfulness of its procurement. However, the conduct is no less fraudulent in its impact on the procedures for issuing search warrants. There is a technical distinction, to be sure, but there is no moral difference. Neither should there be a legal difference. United States v. Luna would call for complete suppression if Agent Seward had lied about the presence in the house of the tableting machine; the result here can only telegraph the message to law enforcement officers that it is safer to break into a man’s home than to lie about it.
I am wholly in accord with our circuit’s ruling that, absent arbitrariness, a magistrate’s finding of probable cause is conclusive. United States v. Giacalone, 541 F.2d 508 (6th Cir. 1976). Likewise I enthusiastically agree that “. . . when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.” United States v. Ventresca, 380 U.S. 102, *1245109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). These are sound and useful rules, but it seems to me that their necessary corollary is that we can only accord this deference to the magistrate’s determination if we protect the integrity of the process by which that determination is reached, especially when the magistrate cannot.
I respectfully suggest that suppression here is supported not by any new extension of the law but is called for by the most ordinary application of existing principles and case law. We need not even concern ourselves with whether to extend the rule in Luna, because the information here was unquestionably material to the issue of probable cause. Contrary to the majority, I would hold that the standards in both Langley and Nelson compel reversal.
The motive of Agent Seward in persuading Bert to break and enter Thomas Flowers’ home is clear. He stated, “I have got to know if that tablet-making machine is still at the Blair residence.” The overwhelming evidence points to the tablet-making machine as being not only the primary object of the entire search but essential to show the entire nature of the operations being carried on at North Blair Street. Its presence there had not been observed since “the fall of 1972,” at least fifteen months before the April 6, 1974 break-in, although as late as December, 1973 persons were observed carrying plastic bags of tablets out of the house. Seward’s desperation is apparent from the quoted testimony and shows that without it, he was either not satisfied himself that there was probable cause or, more likely, concluded that without it he had insufficient evidence to convince the magistrate to issue the warrant. His own conduct and resort to such drastic steps is compelling proof that the evidence sought was anything but trivial, minor, or merely cumulative. On the contrary, it was the only solid, contemporary evidence he was able to produce for the magistrate concerning the North Blair Street house. The remainder was ambiguous at best. There was evidence that the Kinde operation had been discontinued in February, 1974. Richard and Thomas Flowers were brothers. Without the known presence of the machine in April, 1974, the presence of their cars at Blair Street was hardly exceptional, and the carrying of packages in and out of the Blair Street house was innocuous.
This being a purely federal case, we could well rest suppression upon the supervisory powers of the court and upon our “duty of establishing and maintaining civilized standards of procedure and evidence,” McNabb, supra, 318 U.S. at 340, 63 S.Ct. at 613. I view the conduct here, however, as so fundamentally unfair and corrosive of Thomas’ rights as to rise to constitutional proportions. To violate the Fourth Amendment solely to comply with its requirements not only mocks that great protector of human freedom, but the employment of the fruits of that unlawful conduct impugns fundamental fairness and Thomas’ right to due process under the Fifth Amendment.
I would reverse the conviction of Thomas Flowers and remand for a new trial of the charges against him. I concur in the majority opinion in all other respects.