(dissenting).
I respectfully dissent. Although I agree Hogan’s consent to search the residence was voluntary, I disagree with the conclusion that the seizure of the drugs at Lane’s residence was not an exploitation of the prior illegal entry and search of the garage.
*395To reach its decision, the plurality opinion modifies the fruit-of-the-poisonous-tree doctrine finding the evidence obtained by an exploitation of a prior illegality as the “practical equivalent” to the consent given to obtain this evidence. In describing its own analysis, the plurality states, “this approach is technically inconsistent with the principle announced in Wong Sun.” The plurality’s claim that the fruit-of-the-poisonous-tree doctrine is “technically inconsistent” with the doctrine as announced in Wong Sun is equivalent to saying a woman is only a little pregnant. The opinion’s approach is not only inconsistent with the holding in Wong Sun, it is also illogical and irrational.
As the plurality recognizes, the law requires that the consent not only be voluntary, but also that the State establish a break in the illegal action and the subsequently obtained evidence. State v. Reinier, 628 N.W.2d 460, 468 n. 3 (Iowa 2001). However, the plurality’s analysis always will lead to the conclusion that a voluntary consent from a party not present at the prior illegality establishes a break in the illegal action and the subsequently obtained evidence.
My de novo review of the record reveals the taint of the illegality had not dissipated when the officers obtained the evidence at the residence. In determining whether evidence obtained is admissible following an illegal search and seizure, we consider (1) the temporal proximity of the illegal police action and the discovery of the evidence, (2) the presence of intervening circumstances, “and, particularly, [ (3) ] the purpose and flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416, 427 (1975). The burden to prove the evidence is admissible rests on the State. Id. at 604, 95 S.Ct. at 2262, 45 L.Ed.2d at 427.
Applying the first factor, I find there was no significant time lapse between when the officers entered and searched the garage and when the officers approached Hogan, obtained her consent to search the residence, and discovered the drugs.
As to the second factor, the State does not point to any pertinent circumstance that intervened between the time of the entry and search of the garage and the search of the residence. Although the State argues the officers had prior information that Lane sold drugs, the officers had not obtained any new information regarding Lane’s drug dealings between the time of the illegal entry and search of the garage and the time they searched Lane’s residence. Thus, this information cannot be an intervening circumstance. Additionally, officer Oster testified “[he] wouldn’t even have been [at Lane’s residence] had [he] not made the arrest in the garage earlier on her boyfriend.” This testimony is similar to the testimony in Wong Sun that caused the Supreme Court to suppress the admission of the heroin voluntarily given to the authorities by a person not present at the prior illegal entry and arrest as an exploitation of that prior illegality. See Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963) (holding the exclusionary rule required the suppression of the narcotics voluntarily given to the authorities by a person not present at the prior illegality based on “[t]he prosecutor candidly [telling] the trial court that ‘we .wouldn’t have found those drugs except that [the statements suppressed by the Court due to an illegal entry and arrest] helped us to’ ” find the narcotics).
As to the third factor, the officer’s entry and search of the garage was a flagrant violation of Lane’s rights. Lane testified he asked Oster if he had a warrant to be in the garage. Oster responded they were *396chasing Hammer. .Oster also asked Lane if he just graduated from law school. Lane replied by saying no, he had not graduated from law school. Oster then grabbed his badge and said it gave him the right to do anything he wanted. Neither of the officers refuted this testimony.
After analyzing these same factors, the plurality opinion states:
Police did not acquire any identifiable leads from this discovery that directed them to what other evidence they should look for in another location, where other evidence would be found in another location, or how they could gain access to the person who ultimately consented to the search of the other location. In other words, there was nothing about the incriminating evidence illegally discovered in the garage that directed police to Lane’s residence or to Hogan.
These statements are not only naive, but also are contrary to the record. The police did not intend to search Lane’s residence or any other residence in the neighborhood on this day. The officers believed they might find drugs in Lane’s residence because they found drugs on Lane in the garage. Oster confirmed the reason they searched Lane’s residence was because of the items they found on Lane in the garage. To say there was even a tenuous connection between the illegal search of the garage and the consensual search of the residence completely ignores the record made below.
Although the police had prior information regarding Lane’s drug dealing, the record does not state how they received this information or whether this information would support the issuance of a search warrant by a magistrate. The police should have known they would have been unable to obtain a search warrant based on the information obtained by the illegal entry and search of the garage. See State v. Naujoks, 637 N.W.2d 101, 112 (Iowa 2001) (stating information obtained after an illegal entry is tainted evidence and may not form the basis of probable cause to issue a search warrant); State v. Ahart, 324 N.W.2d 317, 318 (Iowa 1982) (stating information obtained on a prior unlawful search cannot be the basis for the issuance of a search warrant); State v. Swartz, 244 N.W.2d 553, 555 (Iowa 1976) (stating information obtained from the execution of a search warrant issued without probable cause cannot be used to obtain a second search warrant).
Had Hogan not returned home when she did, the officers would have been required to apply for a search warrant to search Lane’s residence. No • judicial officer should have granted the officer’s request for a warrant because the only basis for the warrant would have been the information the officers gained in the illegal entry and search of the garage. And, if a warrant had been granted, any evidence obtained pursuant to the warrant would have been suppressed because that warrant would have been based on the information the officers gained in the illegal entry and search of the garage. As the district court noted in its ruling:
The Defendant urges that the improper entry into the garage invalidates the subsequent consent and search of the Lane residence,-as the officers’ motivation for seeking consent was based on their knowledge gained from the illegal entry into the garage. The Defendant is correct in his assertion that if the officers had relied upon their observations in the garage in seeking a warrant for the Lane residence, those allegations in their affidavits would have to be excised in determining whether the warrant was based on probable cause. Similarly, those observations would play no part in a determination of whether an involun*397tary warrantless search of the Lane residence was permissible.
For the plurality to hold the consent is not an exploitation of the illegal entry and search of the garage when the use of the same information to obtain a search warrant would have been an exploitation of the illegal entry and search leads to an absurd result in this ease.
Furthermore, the plurality rule allowing the police to use the fruits of their prior illegal action to obtain a voluntary consent to search Lane’s residence would only ratify the officers’ illegal conduct. Professor LaFave illustrates this point in the quote relied on by the plurality:
If the purported consent is to search a place different than that previously subjected to an illegal search, then it is much more difficult to support the assertion that the consent was a surrender to an implied claim of authority; police activity in searching place A may fairly be said to be a manifestation of authority to search place A but not place B. But it is at this point that the ... exploitation test takes on importance as an alternative ground for invalidating the consent. If, for example, the prior illegal search provides a significant lead in terms of indicating what other evidence they ought to seek or where they ought to seek it, or if the illegal search provided the means of gaining access to the person from whom the consent was obtained, then a consent obtained by exploitation of that information ivould constitute a fruit of the earlier illegal search. This would be true, as noted earlier, even if the consenting party were unaware of the earlier search.
4 Wayne R. LaFave, Search and Seizure § 8.2(d), at 88 (4th ed.2004) (footnotes omitted) (emphasis added).
Oster’s confirmation that he would-not have asked Hogan for permission to search' the residence had the officers not found the items on Lane in the garage, confirms the prior illegal search provided a significant lead in terms of indicating what other evidence the police ought to seek and where they ought to seek it. I agree if the police had asked Hogan for her consent without the prior illegality, the search would have been constitutional. However, we should not ratify the prior illegal entry and search of the garage by allowing it to be the basis of obtaining Hogan’s consent. Such ratification would remove the incentive for the police to respect an individual’s constitutional guarantees, prevent a person whose rights are violated from having a bona fide remedy • for the violation, and undermine the integrity of the judiciary because the court would be ignoring a clear violation of the Constitution. See State v. Poaipuni, 98 Hawai'i 387, 49 P.3d 353, 359-60 (2002) (holding father’s voluntary consent to search tool shed was the result of exploitation by the police of an unlawful search warrant, thereby rendering the firearms seized in the shed “tainted fruit of the poisonous tree”).
Accordingly, I would exclude the evidence found at Lane’s residence, reverse the defendant’s conviction, and remand the case for a new trial.