*1 502 barred, procedurally
not premised the erroneous probable in- on sound cause even when be, on “use” struction would because of the additional by information obtained the inability prejudice, Swedzinski’s to show “exploitation” er- officers’ of their warrantless variety. ror of the harmless presence is from application excised the for the warrant. It follows then that what was The of order the District Court denying later seized in the warranted search of the § 2255 relief is affirmed. house suppressed should not be the from
jury’s view, my In because consideration. there ample independent was support source warrant, for the of issuance the the later seizure, during the execution of the valid warrant, search of the same items the invad- ing observed, initially officers did not violate the Fourth Murray Amendment. v. United States, 533, 2529, 487 U.S. 108 S.Ct. 101 America, UNITED Appellee, STATES of (1988). 472 L.Ed.2d I would leave for anoth- day er the determination of whether the v. may defendant any be entitled to other re- MADRID, Appellant. Rene dress for the apparent Fourth Amendment by violation occasioned the officers’ initial No. 97-3959. entry. warrantless United Appeals, States Court of Eighth Circuit. 18,
Nov. 1998. America, UNITED Appellee, of STATES ORDER v. suggestion The for rehearing en banc is Judge denied. grant Hansen would the sug- LeJoseph BILLINGSLEY, Macon gestion. Appellant. petition The rehearing by for panel the is No. 98-1817.
also denied. United States Appeals, Court of Eighth Circuit. HANSEN, Judge, Circuit dissenting from the denial of rehearing en banc. 19, Submitted Oct. 1998. panel, Like the assume, I must because 19, Decided Nov. 1998. magistrate neither the judge nor the district any court made fact-findings concerning
them, that there exigent were no circum- justified
stances that the initial warrantless
entry and search of the defendant’s house.
Hence, question the becomes what evidentia-
ry consequence, trial any, if should follow in
this criminal case for apparent the officers’
wholesale violation of the Fourth Amend- panel,
ment. Unlike the I believe that the
magistrate judge’s Franks-type analysis
demonstrates that the search warrant was