(dissenting).
My brothers correctly find that the search of the Shoppe without a warrant was illegal because there were no exigent circumstances. Then, on the purported authority of Segura v. United States, — U.S. -, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), and Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), they go on to hold that the warrant obtained in partial reliance on what was observed during the illegal search and issued *905at least forty-eight hours after the entry is valid. This extends Segura, distorts Franks, and effectively overrules Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
In Segura, the issue, as stated by the Chief Justice, was "whether drugs and the other items not observed during the initial entry and first discovered by the agents the day after the entry, under an admittedly valid search warrant, should have been suppressed.” — U.S. at -, 104 S.Ct. at 3385. The Chief Justice noted that “[e]vidence obtained as the direct result of an unconstitutional search or seizure is plainly subject to exclusion.” Id. Under the facts of Segura, “[n]o information obtained during the initial entry or occupation of the apartment was needed or used by the agents to secure the warrant.” — U.S. at -, 104 S.Ct. at 3391. That is not the fact situation here; what the agents observed during the illegal search was made part of the affidavit application for the warrant that was issued.
In Segura, the time lapse between the initial entry and the issuance of the warrant was nineteen hours. The holding of Segura is specific:
Specifically, we hold that where officers, having probable cause, enter premises, and with probable cause, arrest the occupants who have legitimate possessary interests in its contents and take them into custody and, for no more than the period here involved, secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment’s proscription against unreasonable seizures.
— U.S. at -, 104 S.Ct. at 3382 (emphasis added) (footnote omitted). My brothers have extended the time approved in Segura from nineteen hours to forty-eight hours. They do this “[i]n view of the complex circumstances of the case.” Majority op. at 903. I see nothing complex in the circumstances; in fact, it is a fairly straightforward case. It is suggested that the delay was due to the fact that the day following the seizure was a holiday, the Fourth of July. But the warrant was not issued until the evening of July 6. How much delay will be approved in the future on the basis of unarticulated complex circumstances?
The majority recognizes that it is stretching Segura out of context so it turns to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, to justify its validation of the warrant. With due respect, I do not think Franks applies. The difference between Segura, the instant case, and Franks is that in Franks there was no illegal entry. Franks was directed to the problem of using deliberate falsehoods or recklessly disregarding the truth in order to obtain a warrant. In transferring, the excision approach of Franks to this case, my brothers have completely eviscerated Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), which held:
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], this 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]. 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].
Id. at 484-85, 83 S.Ct. at 415-16.
The inclusion of illegally obtained information in an affidavit for a search warrant is bound to taint the magistrate’s determination of whether the warrant should issue. The question is not, as in Franks, whether the warrant can stand if the false statements are set aside, but whether the magistrate is able to make an objective and careful scrutiny of the affidavit in order to decide if a search warrant should issue. See United States v. Leon, — U.S. -, -, 104 S.Ct. 3405, 3417, 82 L.Ed.2d 677 (1984) and cases cited therein. The Court noted in Leon:
*906Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according “great deference” to a magistrate’s determination. Spinelli v. United States, 393 U.S. [410], at 419 [89 S.Ct. 584, at 590, 21 L.Ed.2d 637 (1969) ]. See Illinois v. Gates, 462 U.S. [213], at -, [103 S.Ct. 2317, -, 76 L.Ed.2d 527 (1983)], United States v. Ventresca, supra, [380 U.S. 102], at 108-109 [85 S.Ct. 741, at 745-746, 13 L.Ed.2d 684 (1965) ].
Id. In my opinion, the fourth amendment demands that the magistrate’s warrant decision not be partially based on tainted material.
For the reasons stated, I think the warrant was invalid and the evidence obtained pursuant to it should have been suppressed. I respectfully dissent.