¶ 57. (dissenting). I agree with much of the majority's analysis but I *335believe the law requires that the cause be remanded to the circuit court for a factual determination of (1) whether any information gained from the phone call or the illegal search of the image gallery affected the law enforcement officers' decision to seek a warrant; and (2) whether any information gained from the phone call or the illegal search of the image gallery affected the magistrate's decision to grant the application.
¶ 58. I agree with the majority opinion that both Carroll and his phone were lawfully seized by Detective Belsha. Majority op., ¶ 22.
¶ 59. I agree with the majority opinion that Detective Belsha's viewing of the "marijuana image" was lawful because the image was in "plain view." Majority op., ¶¶ 3, 24.
¶ 60. I agree with the majority opinion that the Detective's browsing through the cell phone "image gallery" violated the Fourth Amendment. Majority op., ¶¶ 3, 33.
¶ 61. Even if I agreed with the majority both that the "marijuana image" provided probable cause to apply for a warrant to search the contents of the cell phone1 *336and that exigent circumstances2 existed that justified the Detective's answering the cell phone (without a warrant)3 to get information about drug *337trafficking,4 the information relating to drug trafficking from the call still cannot be the basis for the search warrant because on this record we cannot determine whether answering the phone call, and the information obtained from it, were "genuinely independent" from the unlawful warrantless search of the image gallery.5
¶ 62. The sequence in which law enforcement obtained evidence and information is important in the present case. On December 6, law enforcement first lawfully obtained Carroll's cell phone with the "mari*338juana image" in plain view. Lawful search and seizure! The Detective then almost immediately viewed the "image gallery" photos on the cell phone. Majority op., ¶ 8. Unlawful search! The question then is what is the time sequence of viewing the "image gallery" and the Detective's answering the phone, after not answering several other calls. See majority op., ¶¶ 8, 9, 33.
¶ 63. Except for the Detective's affidavit in support of the search warrant, nothing in the circuit court record refers to the Detective's answering the cell phone. Although the majority now relies on this phone call evidence, at the circuit court it simply was not discussed. Therefore the record does not demonstrate precisely when the Detective answered the call. What is clear from the record, however, is that the Detective examined the "image gallery" in the squad car almost immediately after he recovered the phone and placed Carroll in the squad car. Majority op., ¶ 8. The time of the phone call is unknown but appears to be after the Detective viewed the "image gallery." According to the State's brief, "the cell phone call necessarily came in within four hours after the detective had seized the cell phone."
*339¶ 64. Two days later, the Detective sought a warrant to obtain the "image galley" photos, the very same evidence he had already viewed unlawfully.6 The affidavit in support of the application for a search warrant did not even mention the critical evidence on which the majority relies, namely the "marijuana image," which law enforcement had lawfully obtained. The affidavit relied on the information law enforcement obtained from the phone call, on the unlawful examination of the "image gallery," on Carroll's juvenile record and 2004 criminal complaint, and on the Detective's experience with drug trafficking.
¶ 65. The affidavit for the warrant to search the cell phone includes a section titled "Basis for the Request for the Search Warrant," which details that as a result of Detective Belsha's training, experience, and discussions with other experienced law enforcement officers, he is familiar with the methods of distribution and communication devises used by drug traffickers (listed in ¶¶ 1(b) through l(k)), including "(i) Drug traffickers frequently take, or cause to be taken, photographs of themselves, their associates in the drug trade, property acquired from the distribution of drugs and photographs are often kept in their residences and/or places of business; and personalize cellular telephones with such information" (emphasis added). This statement in the affidavit is the only reference to personalizing cell phones.
¶ 66. The affidavit then lists (in ¶¶ 3(a) through 3(e)) matters relating specifically to Carroll to justify *340the issuance of a search warrant: 3(a) a 2004 criminal complaint in which Carroll was observed to be involved in drug trafficking; 3(b) the details of the traffic stop; 3(c) a search of the cell phone that revealed images of Carroll with a firearm; 3(d) a juvenile court record showing that Carroll was adjudicated delinquent of a felony offense, possession with intent to deliver cocaine; and 3(e) an incoming call on Carroll's cell phone from someone seeking to buy drugs and an examination of the phone "incident to Carroll's arrest" that revealed numerous photographs of Carroll with a firearm and "photos of Carroll with what appears to be a quantity of marijuana, photos of what appears to be cocaine, as well as a photo of drugs, money, and a revolver."
¶ 67. To determine whether the warrant issued on this basis was "genuinely independent" of the earlier tainted "image gallery" evidence, I apply the teachings of Murray v. United States, 487 U.S. 533 (1988), and State v. Lange, 158 Wis. 2d 609, 626, 463 N.W.2d 390 (Ct. App. 1990).7 According to Murray, the State has the burden of "convincing a trial court that no information *341gained from the illegal entry affected either the law enforcement officers' decision to seek a warrant or the magistrate's decision to grant it." Murray, 487 U.S. at 540, quoted at majority op., ¶ 45. See also Lange, 158 Wis. 2d at 626.8
¶ 68. Adhering to Murray and Lange,9 I would remand the cause to the circuit court for a factual determination (1) whether any information gained from the phone call or the illegal search of the image gallery affected the law enforcement officers' decision to seek a warrant; and (2) whether any information gained from the phone call or the illegal search of the image gallery affected the magistrate's decision to grant the application. See majority op., ¶ 45. The burden of proving that the evidence is lawfully obtained is on the state. Majority op., ¶ 19.
¶ 69. I reach this conclusion first by examining the facts and holding of Murray. In Murray, the federal agents had investigated the criminal activity and had obtained sufficient evidence to show probable cause *342that the accused were engaged in an extensive drug trafficking conspiracy. None of this evidence violated the Fourth Amendment. Only this untainted evidence was presented on the application for a search warrant.
¶ 70. The problem in Murray was that after legally obtaining this evidence, the federal agents illegally entered a warehouse without a warrant and observed numerous bales of marijuana inside. Murray, 487 U.S. at 536. The agents exited the warehouse without disturbing the evidence. Then the agents applied for a warrant.
¶ 71. In the warrant application for a search of the warehouse in Murray, the federal agents made no mention whatsoever of the illegal search or of the observations made inside the warehouse. The search warrant was issued only on the basis of lawfully obtained evidence obtained prior to the illegal entry. Murray, 487 U.S. at 535-36. The district court denied the defendants' suppression motion and the Court of Appeals affirmed. Murray, 487 U.S. at 536.
¶ 72. The Murray Supreme Court10 reversed and remanded to the district court. Although the federal court of appeals had observed that "this is as clear a case as can be imagined where the [evidence illegally observed] . . . was totally irrelevant" to the issuance of the warrant, 487 U.S. at 543, the Supreme Court was not convinced that the information in the warrant was genuinely independent of the illegal search of the warehouse. The Supreme Court was concerned that the agents' decision to seek the warrant was prompted by what they had seen during the unlawful entry into the warehouse. The Supreme Court also was concerned *343that if the information obtained during that unlawful entry had been presented to the magistrate, the unlawfully obtained information might have affected his decision to issue the warrant. Murray, 487 U.S. at 542.
¶ 73. The Supreme Court remanded the cause to the district court because the district court had "not. .. explicitly [found] that the agents would have sought a warrant if they had not earlier entered the warehouse."11
¶ 74. In contrast to the remand for explicit factual findings required both in Murray and in Lange, here the majority opinion finds a "clear inference" that Detective Belsha "would have sought" the warrant, even without the tainted evidence. Majority op., ¶ 51. The inference seems to be based on the court's post hoc legal rationalization that because Detective Belsha "could have" been granted a warrant on the basis of untainted evidence, he surely would have sought a warrant, which surely would have been granted. The inference is unsupported by law or by the record.
¶ 75. As the Wisconsin court of appeals observed in Lange, 158 Wis. 2d at 627, "we do not make factual findings." Murray simply does not contemplate that, in the absence of any relevant fact-finding by a trial court, an appellate court can reach its own "inference" about whether the law enforcement officers sought the warrant on the basis of evidence that is genuinely independent of the unlawfully obtained evidence.
¶ 76. Justice Scalia's opinion in Murray demands a record from which the inference is "clear enough to justify the conclusion that the District Court's findings *344amounted to a determination of independent source."12 And the facts in Murray provided a much stronger justification for an inference of "genuine independence" than in the present case.
¶ 77. In Murray, the only evidence set forth in the application for the warrant was evidence lawfully obtained before the agents unlawfully obtained additional evidence that was then omitted from the warrant application. In Murray, the district court and court of appeals refused to suppress the evidence. In contrast, in the present case the circuit court suppressed the evidence. If any inference could be drawn from the circuit court's record in the present case, it must be that the evidence from the phone call was tainted.
¶ 78. The record in this case falls short of providing the bases for determining (1) whether any information gained from the phone call or the illegal search of the image gallery affected the law enforcement officers' decision to seek a warrant; and (2) whether any information gained from the phone call or the illegal search of the image gallery affected the magistrate's decision to grant the application. What is plainly required, and not present in this record, is for the State to establish as a matter of fact — not as a matter of speculation — that the *345unlawfully obtained "image gallery" evidence affected neither "the decision to seek the warrant," nor the "decision to issue the warrant." Murray, 487 U.S. at 542.
¶ 79. The majority opinion reaches a conclusion of law — whether the affidavit stripped of the unlawful "gallery images" is genuinely independent of the unlawfully obtained evidence — by impermissibly making a factual inference about the Detective's decision to seek the warrant and the magistrate's decision to issue it.
¶ 80. The majority opinion's logic permits an officer who has already obtained sufficient evidence for a search warrant to proceed nevertheless without one, confirming that the suspected evidence actually exists and thus avoiding the need to apply for a warrant until the suspicions have already been confirmed. In my opinion, the majority ignores the underlying deterrence rationale of the exclusionary rule. The exclusionary rule "is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it." Elkins v. United States, 364 U.S. 206, 217 (1960). This court should not support a" 'search first, warrant later' mentality,"13 and should not fabricate a "post hoc justification for using information that had already been illegally obtained."14
*346¶ 81. For the reasons set forth, I dissent.
There are significant problems with the majority opinion's evaluation of probable cause on this basis.
Detective Belsha did not even mention the "marijuana image" in his application for a search warrant. This "marijuana image" showed only Carroll smoking a "blunt," an ordinary cigar hollowed out and filled with marijuana. If his training and experience had led him to conclude that the marijuana image by itself gave probable cause to believe that Carroll was involved in drug trafficking and that the cellular phone was an instrument of the drug trade, then his failure to mention this photo in the warrant affidavit is inexplicable. He also ignored several incoming calls while browsing the image gallery.
*336These facts cannot he reconciled with the theory that the Detective's "training and experience" by themselves supported an inference drawn from the "marijuana photo" that the phone itself, or any incoming call, would contain evidence of drug trafficking. Rather, the obvious implication is that the Detective thought the initial photo relatively inconsequential, and the decision to answer the later call was motivated by the photos he had already viewed in the image gallery.
"Exigent circumstances" refers "in legal jargon, because our profession disdains plain speech," United States v. Collins, 510 F.3d 697 (7th Cir. 2007), simply to one of several well-established categories of emergency situations in which it would be impracticable for police to obtain a warrant, and so none is required. See, e.g., State v. Richter, 2000 WI 58, ¶ 29, 235 Wis. 2d 524, 612 N.W.2d 29 ("There are four well-recognized categories of exigent circumstances that have been held to authorize a law enforcement officer's warrantless entry into a home."). Here the espoused "exigency" is the possible loss of evidence. Majority op., ¶ 21.
Notably, Detective Belsha himself never espoused an "exigent circumstances" rationale for answering the call. Rather, he believed that he was proceeding pursuant to a valid search "incident to arrest," a conclusion that the circuit court and the majority opinion now set aside.
The theory of the majority's "exigent circumstances" rationale — that if the call went unanswered, important evidence would be lost — is at odds with the Detective's decision to ignore previous incoming calls, all equally likely to contain incriminating evidence. See majority op., ¶ 40 (discussing United States v. De La Paz, 43 F. Supp. 2d 370, 375 (S.D.N.Y. 1999) (exigent circumstances rationale justified where agents answered every one of nine incoming calls)). The far more likely explanation, which it is the State's burden to disprove, is that Detective Belsha did not have sufficient reason to believe the phone contained evidence of drug trafficking until after he began to view the image gallery.
"The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion." Wong Sun v. United States, 371 U.S. 471, 485 (1963).
The "independent source" and "attenuation" doctrines may avoid the suppression of evidence even though a Fourth Amendment violation has taken place.
The Supreme Court has recognized two exclusionary rule exceptions that are based upon the circumstances surrounding the unconstitutional discovery of the evidence. The "independent source" exception allows the government to use illegally obtained evidence if the government also discovered the evidence by means independent of its misconduct. The attenuation exception, in contrast, permits the use of evidence discovered through the government's misconduct if the connection between the misconduct and the discovery of the evidence is sufficiently weak.
Brent D. Stratton, The Attenuation Exception to the Exclusionary Rule: A Study in Attenuated Principle and Dissipated Logic, 75 J. Crim. L. & Criminology 139, 140-41 (1984).
The doctrine of "attenuation" applies a totality of the circumstances analysis but has evolved to apply a three-factor test: (1) the temporal proximity between the Fourth Amendment violation and the subsequent basis for acquiring the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of any official misconduct. See Brown v. Illinois, 422 U.S. 590, 603-04 (1975).
Carroll argues that the "marijuana image" — that is, the image of Carroll smoking a "blunt" — at most raises a reasonable suspicion that he was smoking marijuana, not probable cause to believe that he was selling drugs.
The Detective also stated in his affidavit, as part of the litany of his experience, that drug dealers personalize their cell phones with photos. It is not clear, however, from the Detective's affidavit that the "marijuana image" constituted the relevant "personalizing" of the phone, when the officer made no reference to this image. It is at least as likely that it was the "image gallery," whose contents the Detective detailed, that constituted the relevant "personalizing" of the phone.
Part of the information obtained pursuant to the warrant was the "metadata" embedded in the digital photo files that indicates the time and date when the photos were taken. There is no indication that the Detective obtained this more detailed information prior to receiving the search warrant.
For an excellent discussion of the numerous cases involving a search as the fruit of a prior illegal search, including the Murray case, 487 U.S. 533 (1988), see 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.4(f) (4th ed. 2004).
The majority opinion applies an "independent source" analysis, not an attenuation analysis. Neither the State nor the majority opinion has attempted to argue that the alternative basis for admitting the evidence derived from interception of the call to the cell phone is "attenuated" from the unlawful search of the image gallery or that its taint has been "dissipated." If such analysis were made, it would plainly fail: the call was intercepted at the same time that the illegal search was taking place, in immediate connection with the images being viewed, and without an intervening event. The connection *341between the two occurrences was direct. See Brown v. Illinois, 422 U.S. 590, 603-04 (1975), discussed supra n.5.
In State v. Lange, 158 Wis. 2d 609, 463 N.W.2d 390 (Ct. App. 1990), the warrant application relied on aerial and open field observations acquired legally before investigators made an illegal entry into defendant's marijuana field. Only the last piece of evidence on which the warrant relied was impermissible, yet the court of appeals, following Murray, remanded the cause for the factual determination of whether the warrant application would have been made even without that last piece of the evidence.
State v. Herrmann, 2000 WI App 38, 233 Wis. 2d 135, 608 N.W.2d 406, on which the majority relies, is not, in my opinion, relevant to this case. As the majority acknowledges, Herrmann did not apply the Murray framework on which the majority opinion depends.
Murray was decided 4 — 3, with Justices Brennan and Kennedy not participating. 487 U.S. at 544.
Murray, 487 U.S. at 543.
Id. The only instance in the Murray opinion in which Justice Scalia discussed an inference is as follows:
To be sure, the District Court did determine that the purpose of the warrantless entry was in part "to guard against the destruction of possibly critical evidence," and one could perhaps infer from this that the agents who made the entry already planned to obtain that "critical evidence" through a warrant-authorized search. That inference is not, however, clear enough to justify the conclusion that the District Court's findings amounted to a determination of independent source.
Murray, 487 U.S. at 543.
Murray, 487 U.S. at 540 n.2.
United States v. Taheri, 648 F.2d 598, 600 (9th Cir. 1981). Where police first impermissibly opened a package and seized drugs to perform a chemical drug test, then used a drug-sniffing dog to alert on the package and afterwards sought a warrant only on the basis of the dog's alert, the court reasoned that
[t]he government's position cannot be reconciled with the policy behind the exclusionary rule: the effective deterrence of unlawful searches and seizures. . .. [Such argument would be] no more than a post hoc justification for using information that had already been *346illegally obtained. To permit evidence to be admitted under these circumstances would encourage police officers to ignore the dictates of the fourth amendment in conducting initial investigations. .. . Mechanical application of the traditional Wong Sun "independent source" analysis where a search warrant is subsequently commissioned albeit supported by an affidavit that relies upon independent evidence, would allow police officers to treat the warrant requirement as merely an ex post facto formality.
Id. (internal citations omitted).